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Federal Court (Bankruptcy) Rules 2005

Authoritative Version
SLI 2005 No. 341 Rules/Court & Tribunal Rules as amended, taking into account amendments up to Federal Court (Bankruptcy) Amendment (Federal Circuit Court Name Changes) Rules 2013
Rules governing proceedings under the Bankruptcy Act 1966.
Administered by: Attorney-General's
Registered 09 Oct 2013
Start Date 19 Sep 2013
End Date 01 May 2015
Date of repeal 01 Apr 2016
Repealed by Federal Court (Bankruptcy) Repeal Rules 2016

Commonwealth Coat of Arms

Federal Court (Bankruptcy) Rules 2005

Select Legislative Instrument No. 341, 2005 as amended

made under the

Federal Court of Australia Act 1976

Compilation start date:                     19 September 2013

Includes amendments up to:            SLI No. 230, 2013

 

About this compilation

This compilation

This is a compilation of the Federal Court (Bankruptcy) Rules 2005 as in force on 19 September 2013. It includes any commenced amendment affecting the legislation to that date.

This compilation was prepared on 8 October 2013.

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of each amended provision.

Uncommenced amendments

The effect of uncommenced amendments is not reflected in the text of the compiled law but the text of the amendments is included in the endnotes.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Modifications

If a provision of the compiled law is affected by a modification that is in force, details are included in the endnotes.

Provisions ceasing to have effect

If a provision of the compiled law has expired or otherwise ceased to have effect in accordance with a provision of the law, details are included in the endnotes.

 

 

  

  

  


Contents

 

Part 1—Preliminary                                                                                                             1

1.01....... Name of Rules.................................................................................... 1

1.02....... Commencement................................................................................... 1

1.03....... Application of these Rules and other rules of the Court...................... 1

1.04....... Interpretation....................................................................................... 1

1.05....... Expressions used in the Bankruptcy Act............................................. 2

1.06....... Forms.................................................................................................. 3

Part 2—General                                                                                                                      4

2.01....... Originating application and interim application................................... 4

2.02....... Exercise of powers by Registrars........................................................ 5

2.03....... Review of exercise of powers by Registrars....................................... 6

2.04....... Leave to be heard................................................................................ 6

2.05....... Appearance at application or examination........................................... 7

2.06....... Opposition to application, interim application or petition.................... 7

Part 3—Bankruptcy notices                                                                                            8

3.01....... Substituted service.............................................................................. 8

3.02....... Setting aside bankruptcy notice (Bankruptcy Act s 41(6A), (6C) and (7))               8

3.03....... Extension of time for compliance with bankruptcy notice (Bankruptcy Act s 41(6A) and (6C))             9

Part 4—Creditors’ petitions                                                                                           10

4.01....... Application of Part 4......................................................................... 10

4.02....... Requirements for creditor’s petition and supporting affidavit (Bankruptcy Act s 47)              10

4.03....... Creditor’s petition founded on issue of execution against debtor (Bankruptcy Act s 40(1)(d))                10

4.04....... Creditor’s petition founded on failure to comply with bankruptcy notice etc (Bankruptcy Act s 40(1)(g))              11

4.05....... Documents to be served.................................................................... 12

4.06....... Additional affidavits to be filed before hearing................................. 12

4.07....... Fax copy may be filed in certain cases.............................................. 13

4.08....... Notification and entry of sequestration order.................................... 13

4.09....... Entry of order for dismissal etc of creditor’s petition........................ 14

4.10....... Service of order................................................................................. 14

Part 5—Debtors’ petitions                                                                                              15

5.01....... Referral of debtor’s petition.............................................................. 15

Part 6—Examinations                                                                                                       16

Division 6.1—Interpretation                                                                                   16

6.01....... Definition for Part 6.......................................................................... 16

Division 6.2—Examination of debtor or examinable person                17

6.02....... Application for summons (Bankruptcy Act s 50)............................. 17

6.03....... Hearing of application....................................................................... 18

6.04....... Requirements for summons.............................................................. 18

6.05....... Service of summons.......................................................................... 18

6.06....... Application for discharge of summons............................................. 18

Division 6.3—Examination of relevant person                                             20

6.07....... Application for summons (Bankruptcy Act s 81)............................. 20

6.08....... Hearing of application....................................................................... 20

6.09....... Requirements for summons.............................................................. 20

6.10....... Service of summons.......................................................................... 21

6.11....... Failure to attend examination............................................................. 21

6.12....... Application for discharge of summons............................................. 21

Division 6.4—Examination of examinable person                                      22

6.13....... Application for summons (Bankruptcy Act s 81)............................. 22

6.14....... Hearing of application....................................................................... 23

6.15....... Requirements for summons.............................................................. 23

6.16....... Service of summons.......................................................................... 23

6.17....... Application for discharge of summons............................................. 24

6.18....... Conduct money and witnesses expenses........................................... 24

Part 7—Annulment or review of bankruptcy                                                    25

Division 7.1—Annulment of bankruptcy                                                          25

7.01....... Application of Division 7.1............................................................... 25

7.02....... Requirements for application............................................................. 25

7.03....... Notice to creditors............................................................................. 25

7.04....... Report by trustee............................................................................... 25

7.05....... Entry and service of annulment order................................................ 26

Division 7.2—Review of sequestration order                                                27

7.06....... Review of Registrar’s decision......................................................... 27

Part 8—Trustees                                                                                                                   28

8.01....... Objection to appointment of trustee (Bankruptcy Act s 157(6))........ 28

8.02....... Resignation or release of trustee (Bankruptcy Act ss 180, 183)........ 28

Part 9—Debt agreements                                                                                                30

9.01....... Application of Part 9......................................................................... 30

9.02....... Requirements for application............................................................. 30

9.03....... Service.............................................................................................. 30

9.04....... Notice to creditors............................................................................. 31

9.05....... Entry and service of order................................................................. 31

Part 10—Personal insolvency agreements                                                            32

10.01..... Application of Part 10....................................................................... 32

10.02..... Requirements for application............................................................. 32

10.03..... Service.............................................................................................. 33

10.04..... Notice to creditors............................................................................. 33

10.05..... Entry of order.................................................................................... 33

Part 11—Administration of estates of deceased persons                             34

11.01..... Creditor’s petition (Bankruptcy Act s 244)....................................... 34

11.02..... Additional affidavits to be filed before hearing of creditor’s petition 34

11.03..... Administrator’s petition (Bankruptcy Act s 247).............................. 35

11.04..... Entry of order.................................................................................... 35

Part 12—Warrants                                                                                                              36

12.01..... Arrest of debtor or bankrupt (Bankruptcy Act s 78)......................... 36

12.02..... Apprehension of person failing to attend Court (Bankruptcy Act s 264B(1))          36

Part 13—Costs                                                                                                                       37

Division 13.1—Orders for costs                                                                           37

13.01..... Basis for costs................................................................................... 37

Division 13.2—Short form bills of costs                                                           38

13.02..... Application of Division 13.2............................................................. 38

13.03..... Short form bill of costs..................................................................... 38

13.04..... Claim for costs.................................................................................. 39

13.05..... Attendance at taxation hearing........................................................... 39

Part 14—Proceedings under Cross‑Border Insolvency Act                      40

14.01..... Application of this Part and other rules of the Court......................... 40

14.02..... Expressions used in the Cross‑Border Insolvency Act..................... 40

14.03..... Application for recognition............................................................... 41

14.04..... Application for provisional relief under article 19 of the Model Law 42

14.05..... Registered trustee’s consent to act..................................................... 42

14.06..... Notice of filing of application for recognition................................... 43

14.07..... Notice of order for recognition, withdrawal etc................................. 43

14.08..... Relief after recognition...................................................................... 44

14.09..... Application to modify or terminate an order for recognition or other relief              45

Schedule 1—Forms                                                                                                     46

Form 1—Document Title                                                                                                 46

Form 2—Application                                                                                                         47

Form 3—Interim application                                                                                        50

Form 4—Notice of appearance                                                                                    52

Form 5—Notice stating grounds of opposition to application, interim application or petition   54

Form 6—Creditor’s petition                                                                                          56

Form 7—Sequestration order                                                                                       60

Form 8—Referral of debtor’s petition                                                                    62

Form 9—Summons for examination                                                                        64

Form 10—Application for summons to examine relevant person or examinable person              66

Form 11—Notice to creditors of annulment application                              68

Form 12—Notice to creditors of application for review of Registrar’s decision to make sequestration order                                                                                                                         69

Form 13—Notice to creditors                                                                                        70

Form 14—Applicant creditor’s petition for administration of deceased person’s estate               71

Form 15—Administrator’s petition                                                                           74

Form 16—Arrest warrant                                                                                              76

Form 17—Apprehension warrant                                                                             77

Form 18—Consent to act as designated person                                                 79

Form 19—Notice of filing of application for recognition of foreign proceeding 80

Form 20—Notice of making of order under Cross‑Border Insolvency Act 2008               81

Form 21—Notice of dismissal or withdrawal of application for recognition of foreign proceeding       82

Form 22—Notice of filing of application to modify or terminate an order for recognition or other relief                                                                                                                                      83

Schedule 2—Powers of the Court that may be exercised by a Registrar 84

Schedule 3—Notes to these Rules                                                                86

Endnotes                                                                                                                                    88

Endnote 1—About the endnotes                                                                            88

Endnote 2—Abbreviation key                                                                                90

Endnote 3—Legislation history                                                                             91

Endnote 4—Amendment history                                                                           92

Endnote 5—Uncommenced amendments [none]                                          95

Endnote 6—Modifications [none]                                                                         95

Endnote 7—Misdescribed amendments [none]                                             95

Endnote 8—Miscellaneous [none]                                                                        95

 


Part 1Preliminary

  

1.01  Name of Rules

                   These Rules are the Federal Court (Bankruptcy) Rules 2005.

1.02  Commencement

                   These Rules commence on 6 February 2006.

1.03  Application of these Rules and other rules of the Court

             (1)  Unless the Court otherwise orders:

                     (a)  these Rules apply to a proceeding to which the Bankruptcy Act applies; and

                     (b)  Part 14 applies to a proceeding in the Court under the Cross‑Border Insolvency Act.

Note 1:       The Federal Circuit Court does not have jurisdiction under the Cross‑Border Insolvency Act.

Note 2:       For the definition of Federal Circuit Court, see section 4 of the Act.

             (2)  The other rules of the Court apply, to the extent that they are relevant and not inconsistent with these Rules:

                     (a)  to a proceeding in the Court to which the Bankruptcy Act applies; and

                     (b)  to a proceeding in the Court under the Cross‑Border Insolvency Act that is commenced after 29 March 2009.

1.04  Interpretation

             (1)  In these Rules, unless the contrary intention appears:

Act means the Federal Court of Australia Act 1976.

Bankruptcy Act means the Bankruptcy Act 1966.

bankruptcy notice means a bankruptcy notice issued by the Official Receiver under section 41 of the Bankruptcy Act.

Bankruptcy Regulations means the Bankruptcy Regulations 1996.

Cross‑Border Insolvency Act means the Cross‑Border Insolvency Act 2008 including, unless the contrary intention appears, the Model Law.

Model Law means the Model Law on Cross‑Border Insolvency of the United Nations Commission on International Trade Law, the English text of which is set out in Schedule 1 to the Cross‑Border Insolvency Act, with the modifications set out in Part 2 of that Act.

             (2)  Unless the contrary intention appears, an expression used in these Rules and in Schedule 1 to the Federal Court Rules 2011 has the same meaning in these Rules as it has in that Schedule.

             (3)  Subrule (2) has effect subject to rule 1.05.

1.05  Expressions used in the Bankruptcy Act

                   Unless the contrary intention appears, an expression used in these Rules and in the Bankruptcy Act has the same meaning in these Rules as it has in the Bankruptcy Act.

Note:          The following expressions are defined in subsection 5(1) of the Bankruptcy Act:

·      bankrupt

·      books

·      creditor

·      creditor’s petition

·      debt agreement

·      debtor’s petition

·      examinable affairs

·      examinable person

·      National Personal Insolvency Index

·      Official Receiver

·      Official Trustee

·      personal insolvency agreement

·      petition

·      proclaimed law

·      property

·      the trustee.

1.06  Forms

             (1)  In these Rules, a reference to a form followed by a number is
a reference to the form so numbered in Schedule 1 to these Rules.

             (2)  It is sufficient compliance with these Rules in relation to a document that is required to be in accordance with a form in Schedule 1 if the document is substantially in accordance with the form required or has only such variations as the nature of the case requires.

             (3)  If these Rules do not prescribe a form for a particular purpose, a form prescribed in other rules of the Court for that purpose may be used, but the document must have a title in accordance with Form 1.

Part 2General

  

2.01  Originating application and interim application

             (1)  Unless these Rules otherwise provide, a person must make an application required or permitted by the Bankruptcy Act to be made to the Court:

                     (a)  if the application is not made in a proceeding already commenced in the Court—by filing an application in accordance with Form 2; and

                     (b)  in any other case—by filing an interim application in accordance with Form 3.

             (2)  If final relief has been granted in relation to a proceeding, a person may make an application to the Court in relation to the proceeding by filing an interim application in accordance with Form 3 unless the Court otherwise directs.

             (3)  An application must state:

                     (a)  each section of the Bankruptcy Act, each regulation of the Bankruptcy Regulations or each section of the Cross‑Border Insolvency Act, under which the proceeding is brought; and

                     (b)  the relief sought.

             (4)  An interim application must state:

                     (a)  if appropriate, each section of the Bankruptcy Act, each regulation of the Bankruptcy Regulations or each section of the Cross‑Border Insolvency Act, or each rule of Court under which the application is made; and

                     (b)  the relief sought.

Note:          Each application and appeal mentioned below must be commenced by filing an application in accordance with Form 2. The list is not exhaustive.

(a)    an application for an order for substituted service of a bankruptcy notice;

(b)    an application, under section 50 of the Bankruptcy Act, for the issue of a summons to a debtor, or an examinable person in relation to the debtor, about the debtor and the debtor’s examinable affairs;

(c)    an application, under section 78 of the Bankruptcy Act, for the issue of a warrant for the arrest of a debtor or bankrupt;

(d)    an appeal, under subsection 82(5) of the Bankruptcy Act, against an estimate by the trustee of the value of a debt or liability provable in a bankruptcy;

(e)    an application, under section 153B of the Bankruptcy Act, for the annulment of a bankruptcy;

(f)    an application, under subsection 157(6) of the Bankruptcy Act, objecting to the appointment of a person as a trustee;

(g)    an appeal from a decision of a taxing officer, appointed under subsection 167(8) of the Bankruptcy Act, allowing or disallowing a bill of costs or charges, or an item in such a bill.

(h)    an application, under section 180 of the Bankruptcy Act, for acceptance of a trustee’s resignation from the office of trustee of an estate;

(i)     an application, under section 183 of the Bankruptcy Act, for release of a trustee from the trusteeship of an estate;

(j)     an application, under section 185Q of the Bankruptcy Act, for an order terminating a debt agreement;

(k)    an application, under section 185T of the Bankruptcy Act, for an order declaring that all, or a specified part, of a debt agreement is void;

(l)     an application, under section 222 of the Bankruptcy Act, for an order setting aside a personal insolvency agreement;

(m)   an application, under section 222 of the Bankruptcy Act (as applied by section 76B of that Act), for an order setting aside a composition or scheme of arrangement;

(n)    an application, under section 222C of the Bankruptcy Act, for an order terminating a personal insolvency agreement;

(o)    an application, under section 222C of the Bankruptcy Act (as applied by section 76B of that Act), for an order terminating a composition or scheme of arrangement;

(p)    an application, under section 252B of the Bankruptcy Act, for the annulment of the administration of the estate of a deceased person.

2.02  Exercise of powers by Registrars

                   For the purposes of paragraph 35A(1)(h) of the Act, if the Court so directs, a Registrar may exercise a power of the Court under a provision of the Bankruptcy Act mentioned in Schedule 2.

2.03  Review of exercise of powers by Registrars

             (1)  Subject to any direction by the Court to the contrary, an application under subsection 35A(5) of the Act for review of the exercise of a power of the Court by a Registrar under subsection 35A(1) of the Act must be made by interlocutory application within 21 days after the day on which the power was exercised.

             (2)  An application under paragraph 35A(7)(b) of the Act may be made orally to the Registrar at the time that the Registrar is hearing the application for the exercise of a power mentioned in subsection 35A(1) of the Act.

2.04  Leave to be heard

             (1)  The Court may grant leave to be heard in a proceeding to a person who is not a party to the proceeding.

             (2)  The Court may grant the leave on conditions and may revoke the leave at any time.

             (3)  The Court may order the person to pay costs if:

                     (a)  the granting of leave to the person causes additional costs for a party to the proceeding; and

                     (b)  the Court considers that the costs should be paid by the person.

             (4)  The Court may also order that the person is not to be further heard in the proceeding until the costs are paid or secured to the Court’s satisfaction.

             (5)  The Court may grant leave or make an order under this rule on the Court’s own initiative or on the application of a party or another person having an interest in the proceeding.

             (6)  An application for leave or for an order must be made by filing an interim application in accordance with Form 3.

2.05  Appearance at application or examination

             (1)  A person who intends to appear at the hearing of an application or petition, or take part in an examination, must file a notice of appearance in accordance with Form 4.

             (2)  Rule 8.07 of the Federal Court Rules 2011 (changing a return date) does not apply to the return date fixed for a creditor’s petition.

2.06  Opposition to application, interim application or petition

             (1)  In this rule:

application includes an interim application.

             (2)  A person who intends to oppose an application or petition must, at least 3 days before the date fixed for the hearing of the application or petition or, with the leave of the Court, at the hearing:

                     (a)  file a notice of appearance in accordance with Form 4; and

                     (b)  file a notice in accordance with Form 5 stating the grounds of opposition; and

                     (c)  file an affidavit in support of the grounds of opposition; and

                     (d)  serve the notices and supporting affidavit on the applicant.

Part 3Bankruptcy notices

  

3.01  Substituted service

                   An application for an order for substituted service of a bankruptcy notice must be accompanied by:

                     (a)  a copy of the bankruptcy notice; and

                     (b)  an affidavit stating the grounds in support of the application.

3.02  Setting aside bankruptcy notice (Bankruptcy Act s 41(6A), (6C) and (7))

             (1)  An application to set aside a bankruptcy notice must be accompanied by:

                     (a)  a copy of the bankruptcy notice; and

                     (b)  an affidavit stating:

                              (i)  the grounds in support of the application; and

                             (ii)  the date when the bankruptcy notice was served on the applicant; and

                     (c)  a copy of any application to set aside the judgment or order in relation to which the bankruptcy notice was issued and any material in support of that application.

             (2)  If the application is based on the ground that the debtor has a counter‑claim, set‑off or cross demand mentioned in paragraph 40(1)(g) of the Bankruptcy Act, the affidavit must also state:

                     (a)  the full details of the counter‑claim, set‑off or cross demand; and

                     (b)  the amount of the counter‑claim, set‑off or cross demand and the amount by which it exceeds the amount claimed in the bankruptcy notice; and

                     (c)  why the counter‑claim, set‑off or cross demand was not raised in the proceeding that resulted in the judgment or order in relation to which the bankruptcy notice was issued.

             (3)  The application and supporting documents must be served on the respondent creditor within 3 days after the application is filed.

3.03  Extension of time for compliance with bankruptcy notice (Bankruptcy Act s 41(6A) and (6C))

             (1)  An application for an extension of time for compliance with a bankruptcy notice must be accompanied by:

                     (a)  a copy of the bankruptcy notice; and

                     (b)  an affidavit stating:

                              (i)  the grounds in support of the application; and

                             (ii)  the date when the bankruptcy notice was served on the applicant; and

                     (c)  a copy of any application to set aside the judgment or order in relation to which the bankruptcy notice was issued and any material in support of that application.

             (2)  The application may be made in the absence of a party.

             (3)  If an order extending the time for compliance with a bankruptcy notice is made, the following documents must be served on the respondent creditor within 3 days after the order is made:

                     (a)  the application;

                     (b)  the order;

                     (c)  the supporting documents.

             (4)  The application need be heard in open court only if it is for an extension of time to a date after the first directions hearing.

Part 4Creditors’ petitions

  

4.01  Application of Part 4

                   This Part applies in relation to a creditor’s petition seeking a sequestration order against the estate of a debtor.

4.02  Requirements for creditor’s petition and supporting affidavit (Bankruptcy Act s 47)

             (1)  A creditor’s petition must be in accordance with Form 6.

             (2)  The affidavit verifying the petition required by subsection 47(1) of the Bankruptcy Act may be in accordance with the affidavit set out in Part 2 of Form 6.

             (3)  The petition must be accompanied by:

                     (a)  sufficient copies of the petition for service and proof of service; and

                     (b)  if the affidavit verifying the petition is not included in the petition in accordance with Part 2 of Form 6—an affidavit of a person who knows the relevant facts verifying the petition; and

                     (c)  if appropriate, the affidavits required by rule 4.04.

             (4)  If the petition is accompanied by an affidavit of a person who knows the relevant facts verifying the petition in accordance with paragraph (3)(b), a copy of the petition must be attached to the affidavit.

4.03  Creditor’s petition founded on issue of execution against debtor (Bankruptcy Act s 40(1)(d))

             (1)  If a creditor’s petition is founded on an act of bankruptcy mentioned in paragraph 40(1)(d) of the Bankruptcy Act, the affidavit verifying the petition must state:

                     (a)  that, in consequence of the issue of execution against the debtor, property of the debtor has been sold by the sheriff or held by the sheriff for 21 days; or

                     (b)  that the writ or warrant of execution relating to the act of bankruptcy has been returned unsatisfied.

             (2)  If paragraph (1)(b) applies, the affidavit must have attached to it a sealed or certified copy of the writ or warrant of execution returned unsatisfied.

4.04  Creditor’s petition founded on failure to comply with bankruptcy notice etc (Bankruptcy Act s 40(1)(g))

             (1)  If a creditor’s petition is founded on an act of bankruptcy mentioned in paragraph 40(1)(g) of the Bankruptcy Act, the petition must also be accompanied by:

                     (a)  an affidavit stating:

                              (i)  that the records of the Court and the records of the Federal Circuit Court have been searched and no application in relation to the bankruptcy notice has been made; or

                             (ii)  that an application was made in the Court or in the Federal Circuit Court, as applicable, for an order setting aside the relevant bankruptcy notice and the application has been finally decided; or

                            (iii)  that an application was made in the Court or in the Federal Circuit Court, as applicable, for an order extending the time for compliance with the bankruptcy notice and the application has been finally decided; and

                     (b)  an affidavit of service of the relevant bankruptcy notice.

Note:          For the definition of Federal Circuit Court, see section 4 of the Act.

             (2)  If an application mentioned in subparagraph (1)(a)(ii) or (iii) was made, a copy of the order finally deciding the application must be attached to the affidavit required by paragraph (1)(a).

4.05  Documents to be served

                   Unless the Court otherwise orders, at least 5 days before the date fixed for the hearing of a creditor’s petition, the applicant creditor must serve on the respondent debtor:

                     (a)  the creditor’s petition; and

                     (b)  a copy of the affidavit, or affidavits, verifying the petition required by subsection 47(1) of the Bankruptcy Act; and

                     (c)  if applicable, a copy of the affidavit required by paragraph 4.04(1)(a); and

                     (d)  if applicable, a copy of the affidavit of service of the bankruptcy notice required by paragraph 4.04(1)(b); and

                     (e)  a copy of any consent to act as trustee filed under section 156A of the Bankruptcy Act.

4.06  Additional affidavits to be filed before hearing

             (1)  Before the hearing of a creditor’s petition, the applicant creditor must file the affidavits required by this rule.

             (2)  The applicant creditor must file an affidavit that:

                     (a)  states that the documents required to be served under rule 4.05 have been served and when and how they were served; and

                     (b)  has attached to it a copy of the documents that were served and proof of service in relation to the documents.

             (3)  The applicant creditor must file an affidavit of a person who has searched, or caused a search to be made, in the National Personal Insolvency Index no earlier than the day before the hearing date for the petition that:

                     (a)  sets out the details of any references in the Index to the debtor; and

                     (b)  states that there were no details of a debt agreement, about the debt on which the applicant creditor relies, in the Index:

                              (i)  on the day when the petition was presented; and

                             (ii)  on the day when the search was made; and

                     (c)  has attached to it a copy of the relevant extract of the Index.

             (4)  The applicant creditor must file an affidavit of a person who knows the relevant facts that:

                     (a)  was sworn as soon as practicable before the hearing date for the petition; and

                     (b)  states that each debt on which the applicant creditor relies is still owing.

             (5)  The applicant creditor must file a search affidavit if the debt stated in the petition is an amount payable to the applicant creditor under a judgment of a court that ordered the amount to be paid into the court.

             (6)  In subrule (5):

search affidavit, in relation to a petition stating a debt ordered to be paid into a court, means an affidavit of a person who has searched in the proper office of the court, not earlier than the day before the hearing date for the petition, stating whether the amount of the debt, or part of that amount, has been paid as ordered.

4.07  Fax copy may be filed in certain cases

                   If it is not practical for the applicant creditor to file the original of an affidavit mentioned in rule 4.06:

                     (a)  a fax copy of the affidavit may be filed; and

                     (b)  the applicant creditor must keep the original affidavit and produce it as directed by the Court.

4.08  Notification and entry of sequestration order

             (1)  A sequestration order must be in accordance with Form 7.

             (2)  If the Court makes a sequestration order against the estate of a debtor, the applicant creditor must:

                     (a)  on the same day as the order is made, notify the trustee, in writing, of his or her appointment; and

                     (b)  within 2 days after the order is made, give a copy of the sequestration order to any person who has consented to act as a trustee.

             (3)  If the order is not entered at the time the order is made, the applicant creditor must, as soon as practicable, request entry of the order in accordance with Division 39.4 of the Federal Court Rules 2011.

Note:          Subsection 52(1A) of the Bankruptcy Act provides that the creditor who obtained the sequestration order must give a copy of the order to the Official Receiver before the end of the period of 2 days beginning on the day the order was made.

4.09  Entry of order for dismissal etc of creditor’s petition

             (1)  This rule applies if the Court makes an order:

                     (a)  dismissing a creditor’s petition; or

                     (b)  granting leave for a creditor’s petition to be withdrawn; or

                     (c)  under subsection 52(5) of the Bankruptcy Act.

             (2)  The applicant creditor must:

                     (a)  if the order is not entered at the time the order is made—request entry of the order in accordance with Division 39.4 of the Federal Court Rules 2011 as soon as practicable; and

                     (b)  within 2 days after the order is made, give a copy of the order to the Official Receiver.

4.10  Service of order

             (1)  This rule applies to an order of the Court that is entered under rule 4.08 or 4.09.

             (2)  Within 2 days after the entry is stamped, the applicant creditor must give a copy of the order to:

                     (a)  any person who has consented to act as the trustee of the debtor’s estate under section 156A of the Bankruptcy Act; and

                     (b)  the Official Receiver for the District in which the order was made.

Part 5Debtors’ petitions

  

5.01  Referral of debtor’s petition

             (1)  A referral to the Court by the Official Receiver of a debtor’s petition, for a direction to accept or reject the petition, must be in accordance with Form 8.

Note:          For the circumstances in which the Official Receiver must refer a debtor’s petition to the Court for a direction to accept or reject the petition, see subsection 55(3B), section 56C and subsection 57(3B) of the Bankruptcy Act.

             (2)  On receiving a referral, the Registrar must fix a time, date and place for the hearing of the referral.

             (3)  At least 3 days before the date fixed for the hearing, the Official Receiver must serve a sealed copy of the referral, and notice of the time, date and place fixed for the hearing, on:

                     (a)  each debtor who presented the petition; and

                     (b)  each debtor listed in any relevant creditor’s petition; and

                     (c)  each creditor listed in the petition; and

                     (d)  if subsection 56C(4) of the Bankruptcy Act applies, the person administering the relevant proclaimed law.

             (4)  The notice required by subrule (3) must be in accordance with the notice set out in Form 8.

Part 6Examinations

Division 6.1Interpretation

6.01  Definition for Part 6

                   In this Part:

relevant person means a relevant person within the meaning of section 81 of the Bankruptcy Act.

Note:          Examinable person is defined in subsection 5(1) of the Bankruptcy Act.

Division 6.2Examination of debtor or examinable person

6.02  Application for summons (Bankruptcy Act s 50)

             (1)  An application to the Court for a debtor, or an examinable person in relation to the debtor, to be summoned for examination must be accompanied by an affidavit complying with this rule.

             (2)  The affidavit must identify:

                     (a)  the person sought to be examined; and

                     (b)  if that person is an examinable person in relation to a debtor, the debtor in relation to whom the examination is to be conducted.

             (3)  If the application is for a person to be summoned to produce books at the examination, the affidavit must:

                     (a)  identify the books that are to be produced; and

                     (b)  state the grounds on which the person is required to produce the books.

             (4)  The affidavit must state whether the applicant has made any inquiries about the issues to be dealt with at the proposed examination and, if so, set out details of the inquiries, including:

                     (a)  any request to the person to be examined to provide information about the debtor’s affairs or produce books for inspection; and

                     (b)  if a request to provide information or produce books has been made and complied with (including partly), details of the compliance; and

                     (c)  if a request to provide information or produce books has been made and not complied with, details of the failure to comply; and

                     (d)  if no request to provide information or produce books has been made, the reason.

6.03  Hearing of application

                   The application may be heard in the absence of a party or in closed court.

6.04  Requirements for summons

             (1)  A summons must be in accordance with Form 9.

             (2)  A Registrar must:

                     (a)  sign and affix the stamp of the Court to the summons; and

                     (b)  give it to the applicant for service on the debtor or examinable person in relation to the debtor.

             (3)  If the summons requires the debtor, or examinable person in relation to the debtor, to produce books at the examination, the summons must identify the books that are to be produced.

6.05  Service of summons

                   At least 8 days before the date fixed for the examination, the applicant must:

                     (a)  serve the summons on the relevant person personally, or in another way directed by the Court or a Registrar; and

                     (b)  give written notice of the date, time and place fixed for the examination to each creditor of the relevant person of whom the applicant has knowledge.

6.06  Application for discharge of summons

             (1)  A debtor or an examinable person who is served with a summons and wishes to apply for an order to discharge the summons may do so by filing:

                     (a)  an interim application in accordance with Form 3 in the proceeding in which the summons was issued; and

                     (b)  an affidavit setting out the grounds in support of the application.

             (2)  As soon as possible after filing the interim application and supporting affidavit, the debtor or examinable person must serve a copy of each document:

                     (a)  on the person who applied for the summons; and

                     (b)  if the person who applied for the summons is not the Official Receiver, on the Official Receiver.

Division 6.3Examination of relevant person

6.07  Application for summons (Bankruptcy Act s 81)

             (1)  An application to the Court or a Registrar for a relevant person to be summoned for examination in relation to the person’s bankruptcy must be in accordance with Form 10.

             (2)  The application must be accompanied by:

                     (a)  a draft of each summons applied for; and

                     (b)  an affidavit identifying:

                              (i)  each relevant person to be summoned; and

                             (ii)  if the summons is to require the relevant person to produce books at the examination, the books that are to be produced.

Note:          A relevant person may be required to produce books at an examination that are in the possession of the person and relate to the person or to any of the person’s examinable affairs—see subsection 81(1B) of the Bankruptcy Act.

6.08  Hearing of application

                   The application may be heard in the absence of a party or in closed court.

6.09  Requirements for summons

             (1)  A summons must be in accordance with Form 9.

             (2)  A Registrar must:

                     (a)  sign and affix the stamp of the Court to the summons; and

                     (b)  give it to the applicant for service on the relevant person.

             (3)  If the summons requires the relevant person to produce books at the examination, the summons must identify the books that are to be produced.

6.10  Service of summons

                   At least 8 days before the date fixed for the examination, the applicant must:

                     (a)  serve the summons on the relevant person personally, or in another way directed by the Court or a Registrar; and

                     (b)  give written notice of the date, time and place fixed for the examination to each creditor of the relevant person of whom the applicant has knowledge.

6.11  Failure to attend examination

                   If the relevant person does not attend the examination in accordance with the summons, the Court or a Registrar may:

                     (a)  adjourn the examination generally or to another day, time or place; or

                     (b)  discharge the summons.

Note:          For the power of the Court or a Registrar to issue a warrant for the arrest of a relevant person who does not attend an examination in accordance with a summons, see section 264B of the Bankruptcy Act.

6.12  Application for discharge of summons

             (1)  A relevant person who is served with a summons and wishes to apply for an order to discharge the summons may do so by filing:

                     (a)  an interim application in accordance with Form 3 in the proceeding in which the summons was issued; and

                     (b)  an affidavit setting out the grounds in support of the application.

             (2)  As soon as possible after filing the interim application and supporting affidavit, the relevant person must serve a copy of each document:

                     (a)  on the person who applied for the summons; and

                     (b)  if the person who applied for the summons is not the Official Receiver, on the Official Receiver.

Division 6.4Examination of examinable person

6.13  Application for summons (Bankruptcy Act s 81)

             (1)  An application to the Court or a Registrar for an examinable person to be summoned for examination in relation to the bankruptcy of a relevant person must be in accordance with Form 10.

             (2)  A single application may be made for the summons of 2 or more examinable persons in relation to a relevant person’s bankruptcy.

             (3)  The application must be accompanied by:

                     (a)  a draft of each summons applied for; and

                     (b)  an affidavit that complies with subrule (4).

             (4)  The supporting affidavit must:

                     (a)  state whether the applicant is:

                              (i)  a creditor who has a debt provable in the bankruptcy; or

                             (ii)  the trustee of the relevant person’s estate; or

                            (iii)  the Official Receiver; and

                     (b)  state the facts relied on by the applicant to establish that each person to be summoned is an examinable person; and

                     (c)  if the summons is to require an examinable person to produce books at the examination:

                              (i)  identify the books that are to be produced; and

                             (ii)  give details of:

                                        (A)  any inquiry by the applicant about the books to be produced; and

                                        (B)  any refusal by the examinable person to cooperate with the inquiry.

Note:          An examinable person may be required to produce books at an examination that are in the possession of the person and relate to the relevant person or to any of the relevant person’s examinable affairs—see subsection 81(1B) of the Bankruptcy Act.

             (5)  The supporting affidavit may be filed in a sealed envelope marked ‘Affidavit supporting application for summons for examination under subsection 81(1) of the Bankruptcy Act 1966’.

             (6)  If the supporting affidavit is filed in a sealed envelope in accordance with subrule (5), the Registrar must not make it available for public inspection.

6.14  Hearing of application

                   The application may be heard in the absence of a party or in closed court.

6.15  Requirements for summons

             (1)  A summons must be in accordance with Form 9.

             (2)  A Registrar must:

                     (a)  sign and affix the stamp of the Court to the summons; and

                     (b)  send it to the applicant for service on each examinable person to be summoned for examination.

             (3)  If the summons requires an examinable person to produce books at the examination, the summons must identify the books that are to be produced.

6.16  Service of summons

                   At least 8 days before the date fixed for the examination, the applicant must:

                     (a)  serve the summons on each examinable person personally, or in another way directed by the Court or a Registrar; and

                     (b)  give written notice of the date, time and place fixed for the examination to each creditor of the relevant person of whom the applicant has knowledge.

6.17  Application for discharge of summons

             (1)  An examinable person who is served with a summons and wishes to apply for an order to discharge the summons may do so by filing:

                     (a)  an interim application in accordance with Form 3 in the proceeding in which the summons was issued; and

                     (b)  an affidavit setting out the grounds in support of the application.

             (2)  As soon as possible after filing the interim application and supporting affidavit, the examinable person must serve a copy of each document:

                     (a)  on the person who applied for the summons; and

                     (b)  if the person who applied for the summons is not the Official Receiver, on the Official Receiver.

6.18  Conduct money and witnesses expenses

             (1)  A person (other than a relevant person) who, in accordance with a summons, attends an examination to give evidence or produce documents is entitled to be paid:

                     (a)  enough conduct money to cover the reasonable expenses of travelling from and to the place where the person lives, and any reasonable accommodation expenses; and

                     (b)  reasonable expenses for the person’s attendance as a witness.

             (2)  The expenses must be paid by the applicant for the summons.

             (3)  The expenses mentioned in paragraph (1)(a) must be paid a reasonable time before the person is to attend the examination.

             (4)  In this rule:

conduct money means a sum of money or its equivalent, such as pre‑paid travel, sufficient to meet a person’s reasonable expenses of attending an examination and returning after so attending.

Part 7Annulment or review of bankruptcy

Division 7.1Annulment of bankruptcy

7.01  Application of Division 7.1

                   This Division applies to the following applications:

                     (a)  an application under section 153B of the Bankruptcy Act for the annulment of a bankruptcy;

                     (b)  an application under section 252B of the Bankruptcy Act for the annulment of the administration of the estate of a deceased person.

7.02  Requirements for application

             (1)  The application must set out the grounds on which the annulment is sought.

             (2)  The application must be served on the trustee at least 7 days before the hearing date fixed for the application.

7.03  Notice to creditors

             (1)  The applicant must give notice of the application to each person known to the applicant to be a creditor of the bankrupt or a creditor of the estate of the deceased person.

             (2)  The notice must be in accordance with Form 11.

             (3)  The applicant must serve the notice on each creditor at least 7 days before the hearing date fixed for the application.

7.04  Report by trustee

             (1)  If directed by the Court, the trustee must prepare a report for the periods before and after the bankruptcy or the administration of the estate of the deceased person.

             (2)  If the report is in relation to a bankrupt, the report must include information about:

                     (a)  the bankrupt’s conduct; and

                     (b)  the bankrupt’s examinable affairs; and

                     (c)  the administration of the bankrupt’s estate.

             (3)  If the report is in relation to the estate of a deceased person, the report must include information about the administration of the deceased person’s estate.

             (4)  The report must:

                     (a)  be in the form of an affidavit; and

                     (b)  be filed at least 5 days before the date fixed for the hearing of the application.

7.05  Entry and service of annulment order

                   If the Court orders an annulment, the applicant must:

                     (a)  unless the order is entered in the Court at the time it is made, enter the order within 1 day after it is made; and

                     (b)  within 2 days after the entry is stamped, give a copy of the order to the trustee and to the Official Receiver.

Division 7.2Review of sequestration order

7.06  Review of Registrar’s decision

             (1)  This rule applies in relation to an application for review of a decision by a Registrar to make a sequestration order against the estate of a debtor (the bankrupt).

             (2)  The application must be served on the trustee at least 7 days before the hearing date fixed for the application.

             (3)  The applicant must give notice of the application to each person known to the applicant to be a creditor of the bankrupt.

             (4)  The notice must be in accordance with Form 12.

             (5)  The applicant must serve the notice on each creditor at least 7 days before the hearing date fixed for the application.

             (6)  If directed by the Court, the trustee must prepare a report in relation to the bankrupt in accordance with rule 7.04.

Part 8Trustees

  

8.01  Objection to appointment of trustee (Bankruptcy Act s 157(6))

             (1)  An application objecting to the appointment of a person as a trustee must be accompanied by an affidavit stating the grounds in support of the application.

             (2)  At least 28 days before the hearing date fixed for the application, the application and supporting affidavit must be served on the trustee and any petitioning creditor.

             (3)  At least 14 days before the hearing date fixed for the application, the application and supporting affidavit must be served on each other person known to the applicant to be a creditor of the bankrupt or a creditor of the estate of the deceased person.

Note:          Subsection 157(7A) of the Bankruptcy Act provides that, if the Court cancels the appointment of a trustee and appoints another trustee, the creditor who filed the objection must give the Official Trustee written notice of the cancellation and appointment as soon as practicable.

8.02  Resignation or release of trustee (Bankruptcy Act ss 180, 183)

             (1)  An application for acceptance of a trustee’s resignation from the office of trustee of an estate, or release of a trustee from the trusteeship of an estate, must be accompanied by:

                     (a)  an affidavit stating the grounds in support of the application; and

                     (b)  if the application is for release of a trustee from the trusteeship of an estate:

                              (i)  a statement giving details of the realisation of the bankrupt’s property and the distribution of the estate by the trustee; and

                             (ii)  a copy of the most recent account required under subsection 173(1) of the Bankruptcy Act.

             (2)  The application and supporting documents must be served on:

                     (a)  the Official Receiver; and

                     (b)  the bankrupt; and

                     (c)  anyone else (including a creditor) as ordered by the Court.

             (3)  If the Court makes the order sought, the trustee must:

                     (a)  unless the order is entered in the Court at the time it is made, enter the order within 1 day after it is made; and

                     (b)  within 2 days after the entry is stamped, give a copy of the order to the Official Receiver.

Part 9Debt agreements

  

9.01  Application of Part 9

                   This Part applies to the following applications:

                     (a)  an application under section 185Q of the Bankruptcy Act for an order terminating a debt agreement;

                     (b)  an application under section 185T of the Bankruptcy Act for an order declaring that all, or a specified part, of a debt agreement is void.

9.02  Requirements for application

             (1)  If the application is made by a creditor who also seeks a sequestration order, that must be stated in the application.

             (2)  The application must be accompanied by:

                     (a)  a copy of the debt agreement; and

                     (b)  if the application is for an order terminating a debt agreement—an affidavit stating the facts relied on to satisfy the relevant prerequisite for making the order; and

                     (c)  if the application is for an order declaring that all, or a specified part, of a debt agreement is void—an affidavit stating the facts relied on to establish the relevant ground for applying for the order.

Note for paragraph (b):    The prerequisites for making an order of the kind mentioned in paragraph (b) are set out in subsection 185Q(4) of the Bankruptcy Act.

Note for paragraph (c):    The grounds for applying for an order of the kind mentioned in paragraph (c) are stated in subsection 185T(2) of the Bankruptcy Act.

9.03  Service

                   At least 5 days before the date fixed for the hearing of the application, the application and each supporting document must be served on:

                     (a)  the debtor; and

                     (b)  if the applicant is not the Official Trustee—the Official Receiver.

9.04  Notice to creditors

             (1)  At least 5 days before the date fixed for the hearing of the application, the applicant must serve a written notice of the time, date and place fixed for the hearing on each creditor known to the applicant.

             (2)  The notice must be in accordance with Form 13.

9.05  Entry and service of order

                   If the Court makes an order under this Part, the applicant must:

                     (a)  unless the order is entered in the Court at the time it is made, enter the order within 1 day after it is made; and

                     (b)  within 2 days after the entry is stamped, give a copy of the order to the Official Receiver.

Part 10Personal insolvency agreements

  

10.01  Application of Part 10

                   This Part applies to the following applications:

                     (a)  an application under section 222 of the Bankruptcy Act for an order setting aside a personal insolvency agreement;

                     (b)  an application under section 222C of the Bankruptcy Act for an order terminating a personal insolvency agreement;

                     (c)  an application under section 222 of the Bankruptcy Act (as applied by section 76B of that Act) for an order setting aside a composition or scheme of arrangement;

                     (d)  an application under section 222C of the Bankruptcy Act (as applied by section 76B of that Act) for an order terminating a composition or scheme of arrangement.

10.02  Requirements for application

             (1)  If the application is made by a trustee or creditor who also seeks a sequestration order, that must be stated in the application.

             (2)  The application must be accompanied by an affidavit stating:

                     (a)  the facts relied on to establish the relevant ground for making the order; and

                     (b)  if the application is for an order under subsection 222(2) or (5)—the facts relied on to satisfy the relevant prerequisite for making the order.

Note for paragraph (a):    The grounds for making an order to which this Part applies are stated in subsections 222(1), (2) and (5) and section 222C of the Bankruptcy Act.

Note for paragraph (b):    The prerequisites for making an order of the kind mentioned in paragraph (2)(b) are stated in subsections 222(4) and (7) of the Bankruptcy Act.

10.03  Service

                   Unless the Court otherwise orders, at least 5 days before the date fixed for the hearing of the application, the application and supporting affidavit must be served on:

                     (a)  the debtor; and

                     (b)  the trustee of the estate; and

                     (c)  the Official Receiver.

Note:          The Court may dispense with service on the debtor of notice of an application: see subsection 222(12) of the Bankruptcy Act.

10.04  Notice to creditors

             (1)  At least 5 days before the date fixed for the hearing of the application, the applicant must serve a written notice of the time, date and place fixed for the hearing on each creditor named in the debtor’s statement of affairs.

             (2)  The notice must be in accordance with Form 13.

10.05  Entry of order

                   If:

                     (a)  the Court makes an order under this Part; and

                     (b)  the order is not entered at the time the order is made;

the applicant must, as soon as practicable, request entry of the order in accordance with Division 39.4 of the Federal Court Rules 2011.

Part 11Administration of estates of deceased persons

  

11.01  Creditor’s petition (Bankruptcy Act s 244)

                   A creditor’s petition for the making of an order for the administration of a deceased person’s estate must be:

                     (a)  in accordance with Form 14; and

                     (b)  accompanied by the affidavit verifying the petition required by subsection 244(5) of the Bankruptcy Act.

11.02  Additional affidavits to be filed before hearing of creditor’s petition

             (1)  Before the hearing of a creditor’s petition, the applicant creditor must file the affidavits required by this rule.

             (2)  The applicant must file an affidavit stating:

                     (a)  that the petition, the affidavit verifying the petition, and any consent to act as trustee filed under section 156A of the Bankruptcy Act, have been served on the legal personal representative of the deceased person or on someone else directed by the Court; and

                     (b)  how the documents were served.

             (3)  The applicant must file an affidavit of a person who knows the relevant facts that:

                     (a)  was sworn not earlier than the day before the hearing date for the petition; and

                     (b)  states that each debt on which the applicant creditor relies is still owing.

             (4)  The applicant must file an affidavit of a person who has searched in the National Personal Insolvency Index no earlier than the day before the hearing date for the petition that:

                     (a)  sets out the details of any references in the Index to the deceased person; and

                     (b)  states that there were no details of a debt agreement, in relation to the debt on which the applicant relies, in the Index on the day on which the petition was presented; and

                     (c)  has attached to it a copy of the relevant extract of the Index.

             (5)  If a proceeding has been commenced in a court for the administration of the deceased person’s estate under a State or Territory law, the applicant creditor must file an affidavit of a person who knows the relevant facts setting out details of the proceeding.

11.03  Administrator’s petition (Bankruptcy Act s 247)

                   A petition by a person administering the estate of a deceased person for an order for the administration of the estate must be in accordance with Form 15.

Note:          Subsection 247(1) of the Bankruptcy Act provides that the petition must be accompanied by a statement, in duplicate, of the deceased person’s affairs and of the administrator’s administration of the deceased person’s estate. Regulation 11.01 of the Bankruptcy Regulations sets out the particulars that must be included in the statement.

11.04  Entry of order

                   If:

                     (a)  the Court makes an order under this Part; and

                     (b)  the order is not entered at the time the order is made;

the applicant must, as soon as practicable, request entry of the order in accordance with Division 39.4 of the Federal Court Rules 2011.

Note:          Subsection 247(3) of the Bankruptcy Act provides that the person administering the estate of the deceased person must, before the end of the period of 2 days beginning on the day the order was made, give a copy of the order to the Official Receiver.

Part 12Warrants

  

12.01  Arrest of debtor or bankrupt (Bankruptcy Act s 78)

             (1)  An application for the issue of a warrant for the arrest of a debtor or bankrupt must state the grounds for the issue of the warrant.

             (2)  The application must be accompanied by an affidavit stating the facts in support of the application.

             (3)  The warrant must be in accordance with Form 16.

             (4)  If a debtor or bankrupt is arrested under the warrant, the person who carried out the arrest must immediately give notice of the arrest to a Registrar in the Registry from which the warrant was issued.

Note:          See also subsection 130(2) of the Bankruptcy Act, which provides for the issue of a warrant for the seizure of property connected with a debtor or bankrupt. A suggested form for such a warrant is shown in Schedule 3 (Notes to these Rules).

12.02  Apprehension of person failing to attend Court (Bankruptcy Act s 264B(1))

             (1)  A warrant for the apprehension of a person who fails to comply with a summons must be in accordance with Form 17.

             (2)  The Court or a Registrar may order that the warrant be kept in the Registry:

                     (a)  for a stated time; and

                     (b)  on any conditions that the Court or Registrar considers appropriate.

             (3)  If a person is arrested under the warrant, the person who carried out the arrest must immediately give notice of the arrest to a Registrar in the Registry from which the warrant was issued.

Note:          For the procedure to be followed if a person is apprehended under a warrant and it is not practicable to bring the person before the Court or a Registrar on the day the person is apprehended, see Part 14 of the Bankruptcy Regulations.

Part 13Costs

Division 13.1Orders for costs

13.01  Basis for costs

             (1)  Subject to Division 13.2, a person who is entitled to costs in a proceeding to which the Bankruptcy Act applies is entitled to costs in accordance with Part 40 of the Federal Court Rules 2011 unless the Court otherwise orders.

             (2)  In making an order for costs, the Court may fix the amount of the costs.

             (3)  If the Court fixes the amount of the costs, Part 40 of the Federal Court Rules 2011 does not apply to a bill of costs submitted for the costs, except for the issue of a certificate of taxation.

Division 13.2Short form bills of costs

13.02  Application of Division 13.2

             (1)  This Division makes provision in relation to the costs that may be charged by a lawyer for a creditor for work done in relation to a petition against the estate of a debtor on the basis of an act of bankruptcy mentioned in paragraph 40(1)(g) of the Bankruptcy Act.

             (2)  This Division does not apply if the Court fixes the amount of the costs.

Note:          A debtor commits an act of bankruptcy under paragraph 40(1)(g) of the Act if the debtor does not:

(a)    comply with a bankruptcy notice issued on the application of a creditor who has obtained a final judgment or final order against the debtor; or

(b)    satisfy the Court that he or she has a counter‑claim, set‑off or cross demand equal to or more than the amount of the judgment debt that he or she could not have set up in the action or proceeding in which the judgment or order was obtained.

13.03  Short form bill of costs

             (1)  If the Court makes a sequestration order against the debtor’s estate, the lawyer may charge for costs the amount, applying on the date when the petition was presented, stated in item 14.1 of Schedule 3 to the Federal Court Rules 2011.

             (2)  If the petition is dismissed, and the creditor obtains an order for costs, the lawyer may charge for costs the amount, applying on the date when the petition was presented, stated in item 14.2 of Schedule 3 to the Federal Court Rules 2011.

             (3)  The lawyer may also charge:

                     (a)  if adjournment costs were reserved or awarded on a day—the appropriate amount stated in item 1 of Schedule 3 to the Federal Court Rules 2011;and

                     (b)  proper disbursements incurred for the petition.

             (4)  If the lawyer charges an amount for costs under subrule (1) or (2), Part 40 of the Federal Court Rules 2011 does not apply to a bill of costs submitted for the costs, except for the issue of a certificate of taxation.

13.04  Claim for costs

             (1)  A lawyer who wishes to claim costs must serve the documents mentioned in subrule (2) on:

                     (a)  if the Court makes a sequestration order—the trustee; or

                     (b)  if the petition is dismissed—the debtor.

             (2)  For subrule (1), the documents are:

                     (a)  a bill of costs and disbursements; and

                     (b)  a copy of any receipts, vouchers or journals in support of the disbursements claimed.

             (3)  The bill need not include an itemised account of the work or services performed.

             (4)  If the trustee or debtor disputes any of the costs or disbursements, the trustee or debtor must give to the creditor a written notice stating the costs or disbursements disputed.

             (5)  The notice must be given within 14 days after the bill is served.

             (6)  At least 14 days after the lawyer serves the documents on the trustee or debtor, the creditor may file in the Court:

                     (a)  a copy of each document; and

                     (b)  an affidavit of service of the bill of costs and disbursements on the trustee or debtor; and

                     (c)  a copy of any notice given by the trustee or debtor under subrule (4).

13.05  Attendance at taxation hearing

                   A creditor, the trustee, or a lawyer representing the creditor or the trustee, may attend a taxation of the bill of costs and disbursements only if a taxing officer directs the creditor, trustee or lawyer to attend.

Part 14Proceedings under Cross‑Border Insolvency Act

  

14.01  Application of this Part and other rules of the Court

                   Unless the Court otherwise orders:

                     (a)  this Part applies to a proceeding in the Court, under the Cross‑Border Insolvency Act, involving a debtor who is an individual; and

                     (b)  the rules in the other Parts of these Rules, and the other rules of the Court, apply to a proceeding in the Court under the Cross‑Border Insolvency Act if they are relevant and not inconsistent with this Part.

Note:          See rule 1.04 for definitions of Cross‑Border Insolvency Act and Model Law.

14.02  Expressions used in the Cross‑Border Insolvency Act

             (1)  Unless the contrary intention appears, an expression used in this Part and in the Cross‑Border Insolvency Act, whether or not a particular meaning is given to the expression by the Cross‑Border Insolvency Act, has the same meaning in this Part as it has in the Cross‑Border Insolvency Act.

Note:          The following expressions used in this Part (including in the notes to this Part) are defined in the Model Law as having the following meanings:

                   establishment means any place of operations where the debtor carries out a non‑transitory economic activity with human means and goods or services.

                   foreign court means a judicial or other authority competent to control or supervise a foreign proceeding.

                   foreign main proceeding means a foreign proceeding taking place in the State where the debtor has the centre of its main interests.

                   foreign non‑main proceeding means a foreign proceeding, other than a foreign main proceeding, taking place in a State where the debtor has an establishment as defined in the Model Law.

                   foreign proceeding means a collective judicial or administrative proceeding in a foreign State, including an interim proceeding, pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganization or liquidation.

                   foreign representative means a person or body, including one appointed on an interim basis, authorized in a foreign proceeding to administer the reorganization or the liquidation of the debtor’s assets or affairs or to act as a representative of the foreign proceeding.

             (2)  This Part is to be interpreted in a manner that gives effect to the Cross‑Border Insolvency Act.

14.03  Application for recognition

             (1)  An application by a foreign representative for recognition of a foreign proceeding under article 15 of the Model Law must be made by filing an application in accordance with Form 2.

             (2)  The application must:

                     (a)  be accompanied by the statements mentioned in article 15 of the Model Law and in section 13 of the Cross‑Border Insolvency Act; and

                     (b)  name the foreign representative as the applicant and the debtor as the respondent; and

                     (c)  be accompanied by an affidavit verifying the matters mentioned in paragraphs 2 and 3 of article 15 of the Model Law and in section 13 of the Cross‑Border Insolvency Act.

             (3)  When filing the application, the foreign representative must file, but need not serve, an interim application seeking directions as to service, and the Court may give any directions about service, and make any incidental orders, that it thinks just.

             (4)  The applicant must serve a copy of the application and the other documents mentioned in subrule (2):

                     (a)  unless the Court otherwise orders—on each respondent (if any) to the proceeding as soon as practicable after filing an application and, in any case, at least 5 days before the date fixed for hearing; and

                     (b)  on any other persons the Court may direct at the hearing of the interim application.

             (5)  A person who intends to appear before the Court at the hearing of an application for recognition must file and serve the documents mentioned in rule 2.05.

14.04  Application for provisional relief under article 19 of the Model Law

             (1)  Any application by the applicant for provisional relief under article 19 of the Model Law must be made by filing an interim application in accordance with Form 3.

             (2)  Unless the Court otherwise orders, the interim application and any supporting affidavit must be served on each respondent at least 3 days before the date fixed for the hearing of the interim application.

14.05  Registered trustee’s consent to act

                   If an application is made for an order:

                     (a)  under article 19 or 21 of the Model Law to entrust the administration or realisation of all or part of the debtor’s assets to a person designated by the Court (other than the foreign representative); or

                     (b)  under article 21 to entrust the distribution of all or part of the debtor’s assets to a person designated by the Court (other than the foreign representative);

then, unless the Court otherwise orders, the person must:

                     (c)  be a registered trustee; and

                     (d)  have filed a Consent to Act, in accordance with Form 18, that specifies an address for service for the person within Australia.

Note           registered trustee is defined in subsection 5(1) of the Bankruptcy Act.

14.06  Notice of filing of application for recognition

             (1)  Unless the Court otherwise orders, the applicant in a proceeding mentioned in rule 14.03 must:

                     (a)  send a notice of the filing of the application in accordance with Form 19 to each person whose claim to be a creditor of the respondent is known to the applicant; and

                     (b)  publish a notice of the filing of the application:

                              (i)  in accordance with Form 19; and

                             (ii)  once in a daily newspaper circulating generally in the State or Territory where the respondent has his or her principal, or last known, place of residence.

             (2)  The Court may direct the applicant to publish a notice in accordance with Form 19 in a daily newspaper circulating generally in any State or Territory not described in subparagraph (1)(b)(ii).

14.07  Notice of order for recognition, withdrawal etc

             (1)  If the Court makes an order for recognition of a foreign proceeding under article 17 of the Model Law, or makes any order under article 19 or 21 of the Model Law, the applicant must, as soon as practicable after the order is made, do all of the following:

                     (a)  have the order entered;

                     (b)  serve a copy of the entered order on the respondent;

                     (c)  send a notice of the making of the order in accordance with Form 20 to each person whose claim to be a creditor of the respondent is known to the applicant;

                     (d)  publish a notice of the making of the order in accordance with Form 20, in accordance with subparagraph 14.06(1)(b)(ii).

             (2)  The Court may direct the applicant to publish the notice in accordance with Form 20 in a daily newspaper circulating generally in any State or Territory not described in subparagraph 14.06(1)(b)(ii).

             (3)  If the application for recognition is withdrawn or dismissed, the applicant must, as soon as practicable, do all of the following:

                     (a)  for a dismissal—have the order of dismissal entered;

                     (b)  serve a copy of the entered order of dismissal or notice of the withdrawal, on the respondent;

                     (c)  send a notice of the dismissal or withdrawal in accordance with Form 21 to each person whose claim to be a creditor of the respondent is known to the applicant;

                     (d)  publish a notice of the dismissal or withdrawal in accordance with Form 21, in accordance with subparagraph 14.06(1)(b)(ii).

             (4)  The Court may direct the applicant to publish the notice in accordance with Form 21 in a daily newspaper circulating generally in any State or Territory not described in subparagraph 14.06(1)(b)(ii).

14.08  Relief after recognition

             (1)  If the Court has made an order for recognition of a foreign proceeding, any application by the applicant for relief under paragraph 1 of article 21 of the Model Law must be made by filing an interim application, and any supporting affidavit, in accordance with Form 3.

             (2)  Unless the Court otherwise orders, an interim application under subrule (1) and any supporting affidavit must be served at least 3 days before the date fixed for the hearing of the interim application on the following persons:

                     (a)  the respondent;

                     (b)  any person that the Court directed be served with the originating process by which the application for recognition was made;

                     (c)  any other person that the Court directs.

             (3)  A person who intends to appear before the Court at the hearing of an application under subrule (1) must file and serve the documents mentioned in rule 2.05.

14.09  Application to modify or terminate an order for recognition or other relief

             (1)  This rule applies to:

                     (a)  an application under paragraph 4 of article 17 of the Model Law for an order modifying or terminating an order for recognition of a foreign proceeding; and

                     (b)  an application under paragraph 3 of article 22 of the Model Law for an order modifying or terminating relief granted under article 19 or 21 of the Model Law.

             (2)  The application must be made by filing an interim application in accordance with Form 3.

             (3)  An interim application and any supporting affidavit must be served on:

                     (a)  for an application under paragraph (1)(a)—the respondent and other persons who were served with, or filed a notice of appearance in relation to, the application for recognition; and

                     (b)  for an application under paragraph (1)(b)—the respondent and other persons who were served with, or filed a notice of appearance in relation to, the application for relief under article 19 or 21.

             (4)  Unless the Court otherwise orders, the applicant must:

                     (a)  send a notice of the filing of the application in accordance with Form 22 to each person whose claim to be a creditor of the respondent is known to the applicant; and

                     (b)  publish a notice of the filing of the application in accordance with Form 22, in accordance with subparagraph 14.06(1)(b)(ii).

             (5)  The Court may direct the applicant to publish the notice in accordance with Form 22 in a daily newspaper circulating generally in any State or Territory not described in subparagraph 14.06(1)(b)(ii).

             (6)  A person who intends to appear before the Court at the hearing of the application must file and serve the documents mentioned in rule 2.05.


Schedule 1Forms

Form 1Document Title

(subrule 1.06(3))

No.           of 20     

IN THE [name of Court]

District Registry: [State]

Division: General

IN THE MATTER OF: [Name of debtor or bankrupt estate]

[Name of Applicant(s)]

Applicant[s]

[Name of Respondent(s)]

Respondent[s]

 

Filed on behalf of (name and role of party)

 

Prepared by (name of person/lawyer)

 

Law firm (if applicable)

 

Tel

 

Fax

 

Email

 

Address for service
(include State and postcode)

 

Form 2Application

(rules 2.01 and 14.03)

APPLICATION

IN THE [name of Court]

REGISTRY: [name of Registry]

GENERAL DIVISION

No.    of [year]

IN THE MATTER OF [name of debtor or bankrupt estate]

[name of applicant(s)]

Applicant(s)

[name of respondent(s)]

Respondent(s)

NOTICE TO RESPONDENT

[Complete this section if there is a respondent]

TO the respondent of [address]:

This application has been set down for the time and place stated below. If you or your legal representative do not attend the Court at that time, the application may be dealt with and judgment may be given, or an order made, in your absence. As soon after the time mentioned as the business of the Court will allow, any of the following may happen:

(a)     the application may be heard;

(b)     directions may be given for the further conduct of the proceeding;

(c)     any application for interim orders may be heard.

 

  The following information must appear at the foot of the first page of this application.

Filed on behalf of (name and role of party)

 

Prepared by (name of person/lawyer)

 

Law firm (if applicable)

 

Tel

 

Fax

 

Email

 

Address for service
(include State and postcode)

 

Before any attendance at Court, you must file a notice of appearance in the Registry.

Time and date for hearing: [to be entered by Registry unless fixed by Court]

Place: [address of Court]

Date:

[signed, District Registrar/Deputy District Registrar/Authorised Officer]

*Registrar/*Deputy District Registrar/*Authorised Officer

A.      FINAL ORDERS SOUGHT BY APPLICANT

On the grounds stated in the supporting affidavit or statement of claim, the applicant seeks the following orders:

[Specify in numbered paragraphs all the final orders sought]

1.   

2.   

3.   

B.      INTERIM ORDERS SOUGHT BY APPLICANT

[Complete this section if you also seek interim orders]

The applicant seeks the following interim orders:

[Specify in numbered paragraphs all the interim orders sought]

1.      

2.      

3.      

Date:

[signed, applicant or applicant’s lawyer]

*Applicant/*Applicant’s lawyer

C.      ABRIDGMENT OF SERVICE

[Complete this section if the time for service has been abridged]

The time by which this application is to be served has been abridged by order made on [date] to [time and date].

D.      SERVICE

It is not intended to serve this application on any person.

OR

It is intended to serve this application on each person listed below:

[name of each person on whom application is to be served]

Note   An application must state each section of the Bankruptcy Act, regulation of the Bankruptcy Regulations or section of the Cross‑Border Insolvency Act under which the proceeding is brought — see paragraph 2.01(3)(a).

*   Omit if inapplicable

Form 3Interim application

(rules 2.01, 2.04, 6.06, 6.12, 6.17, 14.04, 14.08 and 14.09)

INTERIM APPLICATION

IN THE [name of Court]

REGISTRY: [name of Registry]

GENERAL DIVISION

No.    of [year]

IN THE MATTER OF [name of debtor or bankrupt estate]

[name of applicant(s) for interim order]

Applicant(s) for interim order

[name of respondent(s) for interim order]

Respondent(s) for interim order

NOTICE

This interim application has been set down for the time and place stated below. If you or your legal representative do not attend the Court at that time, the interim application may be dealt with and an order made in your absence.

Time and date for hearing: [to be entered by Registry unless fixed by Court]

Place: [address of Court]

 

  The following information must appear at the foot of the first page of this application.

Filed on behalf of (name and role of party)

 

Prepared by (name of person/lawyer)

 

Law firm (if applicable)

 

Tel

 

Fax

 

Email

 

Address for service
(include State and postcode)

 

DETAILS OF INTERIM ORDERS

On the grounds stated in the supporting affidavit, the applicant [name], seeks the following interim orders:

[Specify in numbered paragraphs all the interim orders sought]

1.        

2.        

3.        

Date:

[signed by the applicant making this application or the applicant’s lawyer]

*Applicant/*Applicant’s lawyer

Note   An interim application must state each section of the Bankruptcy Act, regulation of the Bankruptcy Regulations or section of the Cross‑Border Insolvency Act under which the proceeding is brought — see paragraph 2.01(4)(a).

*   Omit if inapplicable

Form 4Notice of appearance

(rules 2.05, 2.06)

NOTICE OF APPEARANCE

IN THE [name of Court]

REGISTRY: [name of Registry]

GENERAL DIVISION

No.    of [year]

IN THE MATTER OF [name of debtor or bankrupt estate]

[name of applicant(s)]

Applicant(s)

[name of respondent(s)]

Respondent(s)

[Name] of [address], [occupation], appears.

Solicitor [name]

Address:

Telephone:                                          Fax number:

E‑mail address:

Solicitor’s agent [name]

Address:

Telephone:                                          Fax number:

E‑mail address:

Address for service:

 

  The following information must appear at the foot of the first page of this notice.

Filed on behalf of (name and role of party)

 

Prepared by (name of person/lawyer)

 

Law firm (if applicable)

 

Tel

 

Fax

 

Email

 

Address for service
(include State and postcode)

 

Date:

[signed, respondent/respondent’s lawyer or supporting creditor/supporting creditor’s lawyer]

*Respondent/*Respondent’s lawyer/*Supporting creditor/*Supporting creditor’s lawyer

*   Omit if inapplicable

Form 5Notice stating grounds of opposition to application, interim application or petition

(rule 2.06)

NOTICE STATING GROUNDS OF OPPOSITION TO APPLICATION, INTERIM APPLICATION OR PETITION

IN THE [name of Court]

REGISTRY: [name of Registry]

GENERAL DIVISION

No.    of [year]

IN THE MATTER OF [name of debtor or bankrupt estate]

[name of applicant(s)]

Applicant(s)

[name of respondent(s)]

Respondent(s)

[Name of opponent], [specify capacity of opponent, eg creditor, trustee], intends to oppose the *application/*interim application/*petition on the following grounds:

1.     }       [set out grounds of opposition]

2.     }

3.     }

An affidavit supporting the grounds of opposition is filed with this notice.

This notice is filed by [name of lawyer for opponent] for [name of opponent].

The opponent’s address for service is: [address for service].

 

  The following information must appear at the foot of the first page of this notice.

Filed on behalf of (name and role of party)

 

Prepared by (name of person/lawyer)

 

Law firm (if applicable)

 

Tel

 

Fax

 

Email

 

Address for service
(include State and postcode)

 

Date:

[signed, opponent or opponent’s lawyer]

*Opponent/*Opponent’s lawyer

*   Omit if inapplicable

Form 6Creditor’s petition

(rule 4.02)

CREDITOR’S PETITION

IN THE [name of Court]

REGISTRY: [name of Registry]

GENERAL DIVISION

No.    of [year]

IN THE MATTER OF [name of debtor or bankrupt estate]

[name of applicant(s)]

Applicant(s)

[name of respondent(s)]

Respondent(s)

NOTICE TO RESPONDENT

TO the respondent of [address]:

This petition has been set down for hearing by the Court at the time, date and place stated below. If you or your legal representative do not attend the Court at that time, the petition may be dealt with in your absence and a sequestration order making you bankrupt may be made.

If you wish to appear at the hearing, you must file and serve a notice of appearance.

 

  The following information must appear at the foot of the first page of this petition.

Filed on behalf of (name and role of party)

 

Prepared by (name of person/lawyer)

 

Law firm (if applicable)

 

Tel

 

Fax

 

Email

 

Address for service
(include State and postcode)

 

If you wish to appear at the hearing and oppose this petition, you must:

(a)     enter an appearance in accordance with Form 4, and file a notice stating grounds of opposition to the petition in accordance with Form 5 and an affidavit supporting the grounds; and

(b)     serve a copy of each document on the creditor at the address for service stated below not less than 3 days before the date for the hearing of this petition stated below; and

(c)     attend at the Court on the date for the hearing stated below.

Time and date for hearing: [to be entered by Registry]

Place: [address of Court]

Date:

[signed, Registrar]

Registrar

PART 1   PETITION

The applicant creditor [name and address of applicant creditor] applies to the Court for a sequestration order under section 43 of the Bankruptcy Act 1966 against the estate of [name, address and occupation of respondent debtor].

1.       The respondent debtor owes the applicant creditor the amount of [$ amount] for [statement of reason for, and details of, the debt, including details of any judgment debt].

2.       The applicant creditor does not hold security over the property of the respondent debtor.

          OR

          The applicant creditor holds security over the property of the respondent debtor to the value of [$ amount] and consisting of [statement of particulars of security], and:

(a)     is willing to surrender this security for the benefit of creditors generally if a sequestration order is made against the respondent debtor;

                    OR

(b)     the value of the property is [$ amount], which leaves an unsecured debt of [$ amount].

Note   If there is more than 1 applicant creditor, the form may be appropriately amended.

3.       At the time when the act of bankruptcy was committed, the respondent debtor:

*(a)    was personally present in Australia;

*(b)    was ordinarily resident in Australia;

*(c)    had a dwelling house or place of business in Australia;

*(d)    was carrying on business in Australia either personally or by an agent or manager;

*(e)    was a member of a firm or partnership carrying on business in Australia by means of partners or agent or manager.

4.       The following act of bankruptcy was committed by the respondent debtor within 6 months before presentation of this petition:

[Include the following paragraph if the act of bankruptcy is failure to comply with a bankruptcy notice]

          The respondent debtor failed to comply on or before [date of act of bankruptcy] with the requirements of a bankruptcy notice served on *him/*her on [date of service of bankruptcy notice] or to satisfy the Court that *he/*she had a counter‑claim, set‑off or cross demand equal to or more than the sum claimed in the bankruptcy notice, being a counter‑claim, set‑off or cross demand that *he/*she could not have set up in the action in which the judgment referred to in the bankruptcy notice was obtained.

[If the act of bankruptcy is an act of bankruptcy mentioned in section 40 of the Bankruptcy Act 1966 (other than a failure to comply with a bankruptcy notice), give full details of the act of bankruptcy including details of any judgment.]

5.       The applicant creditor provides the following information, to the extent it is known to the applicant creditor, for use by the Insolvency and Trustee Service Australia:

(a)     any alias used by the respondent debtor;

(b)     the date of birth of the respondent debtor;

(c)     the business name of the respondent debtor;

(d)     the business address of the respondent debtor.

Note   Completion of paragraph 5 is optional.

Date:

[signed, applicant or applicant’s lawyer]

*Applicant/*Applicant’s lawyer

This petition is filed by [name of lawyer for petitioner] for [name of petitioner].

The petitioner’s address for service is: [address for service].

PART 2   AFFIDAVIT VERIFYING CREDITOR’S PETITION

On [date], I, [name, address and occupation of deponent], *say on oath/*affirm:

1.       I am the applicant [or I am a director of the applicant or I am a [occupation] of the applicant and, as such, have access to the books and records of the applicant and am authorised to make this affidavit on the applicant’s behalf].

2.       The statements made in paragraphs 1, 2 and 3 of the creditor’s petition are within my own knowledge true.

3.       In respect of the statements made in paragraph 4 of the creditor’s petition, I say the respondent failed, within 21 days after service of the bankruptcy notice, to pay the debt or make an arrangement to *my/*the applicant’s satisfaction for payment of the debt.

*Sworn/*affirmed at [place]

Before me:

[signed, person before whom deponent swears or affirms affidavit]

Note 1   If necessary, this affidavit, and any other affidavit verifying the petition, may be filed as a separate document in accordance with Form 59 of the Federal Court Rules 2011 with the heading prescribed by subrule 1.06(3) of these Rules. If this affidavit is filed as a separate document, a copy of the petition must be attached to it.

Note 2   If the petition is founded on an act of bankruptcy mentioned in paragraph 40(1)(d) of the Bankruptcy Act, the information required by rule 4.03 may be included in this affidavit (or, if an affidavit of the kind mentioned in Note 1 is filed, in that affidavit).

Note 3   If the petition is founded on an act of bankruptcy mentioned in paragraph 40(1)(g) of the Bankruptcy Act, the information required by rule 4.04 may be included in this affidavit (or, if an affidavit of the kind mentioned in Note 1 is filed, in that affidavit).

Note 4   A creditor must give a copy of this petition to the Official Receiver within 3 working days after presentation — see subregulation 4.05(1) of the Bankruptcy Regulations.

*   Omit if inapplicable

Form 7Sequestration order

(rule 4.08)

SEQUESTRATION ORDER

IN THE [name of Court]

REGISTRY: [name of Registry]

GENERAL DIVISION

No.    of [year]

IN THE MATTER OF [name of debtor or bankrupt estate]

[name of applicant(s)]

Applicant(s)

[name of respondent(s)]

Respondent(s)

*JUDGE*/*REGISTRAR:

DATE OF ORDER:

WHERE MADE:

THE COURT ORDERS THAT:

1.       A sequestration order be made against the estate of [name of debtor].

2.       The applicant creditor’s costs be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966.

The Court notes that the date of the act of bankruptcy is [date].

Date entry stamped:

[signed, Registrar]

Registrar

 

  The following information must appear at the foot of the first page of this order.

Filed on behalf of (name and role of party)

 

Prepared by (name of person/lawyer)

 

Law firm (if applicable)

 

Tel

 

Fax

 

Email

 

Address for service
(include State and postcode)

 

Note

Subsection 35A(5) of the Act provides that a party to proceedings in which a Registrar has exercised any of the powers of the Court under subsection 35A(1) of the Act may, within the time prescribed by the Rules of Court, or within any further time allowed in accordance with the Rules of Court, apply to the Court to review that exercise of power.

Rule 2.03 provides that, subject to any direction by the Court to the contrary, an application under subsection 35A(5) of the Act for review of the exercise of a power of the Court by a Registrar under subsection 35A(1) of the Act must be made by interlocutory application within 21 days after the day on which the power was exercised. An applicant seeking a review can apply to a Judge to waive the requirement that the application for review be made by interlocutory application (see rule 1.34 of the Federal Court Rules 2011).

*   Omit if inapplicable

   Omit this note if the orders have not been made by a Registrar.

Form 8Referral of debtor’s petition

(rule 5.01)

REFERRAL OF DEBTOR’S PETITION

IN THE [name of Court]

REGISTRY: [name of Registry]

GENERAL DIVISION

No.    of [year]

IN THE MATTER OF [name of debtor or bankrupt estate]

[name of applicant(s)]

Applicant(s)

[name of respondent(s)]

Respondent(s)

The debtor [name of debtor] has presented a debtor’s petition to the Official Receiver.

Creditor’s petition No. [number] of [year] is pending against a number of debtors or a partnership and includes this debtor.

A copy of the debtor’s petition and statement of affairs is filed with this referral.

The Court is asked to give a direction to accept or reject the petition.

Date:

[signed, Official Receiver]

Official Receiver

 

  The following information must appear at the foot of the first page of this referral.

Filed on behalf of (name and role of party)

 

Prepared by (name of person/lawyer)

 

Law firm (if applicable)

 

Tel

 

Fax

 

Email

 

Address for service
(include State and postcode)

 

NOTICE TO OFFICIAL RECEIVER, DEBTORS AND APPLICANT CREDITOR

This referral has been set down for hearing by the Court at:

Time and date: [to be entered by Registry]

Place: [address of Court]

Date:

[signed, Registrar]

Registrar

Form 9Summons for examination

(rules 6.04, 6.09, 6.15)

SUMMONS FOR EXAMINATION

IN THE [name of Court]

REGISTRY: [name of Registry]

GENERAL DIVISION

No.    of [year]

IN THE MATTER OF [name of debtor or bankrupt estate]

[name of applicant(s)]

Applicant(s)

[name of respondent(s)]

Respondent(s)

Time and date for examination: [to be inserted by Registry]

Place: [address of Court]

TO:    [name and address of person summoned]

1.       You are required to attend before *the Court/*a Registrar/*a magistrate at the time, date and place stated above to be examined on oath under *section 50/*section 81 of the Bankruptcy Act 1966 and to give evidence in relation to the examinable affairs of [name of bankrupt or debtor].

2.       You are also required to attend at any time, date and place to which the examination is adjourned if you have been given written notice of that time, date and place.

 

  The following information must appear at the foot of the first page of this summons.

Filed on behalf of (name and role of party)

 

Prepared by (name of person/lawyer)

 

Law firm (if applicable)

 

Tel

 

Fax

 

Email

 

Address for service
(include State and postcode)

 

3.       You are also required to bring the following books with you and produce them at the examination:

          [list books required]

Date:

[signed, Registrar]

Registrar

This summons was issued on the application of [name of applicant], [specify the capacity of the applicant under subsection 81(1) of the Bankruptcy Act 1966, eg creditor, trustee], whose address for service is [address].

*   Omit if inapplicable

Note 1   Subsection 5(1) of the Bankruptcy Act 1966 defines examinable affairs, in relation to a person, to mean:

(a)   the person’s dealings, transactions, property and affairs; and

(b)   the financial affairs of an associated entity of the person, in so far as they are, or appear to be, relevant to the bankrupt or to any of his or her conduct, dealings, transactions, property and affairs.

[Use the following note for a summons addressed to the bankrupt. Otherwise omit it.]

Note 2   If you do not comply with this summons, a warrant for your apprehension (arrest) may be issued under section 264B of the Bankruptcy Act 1966.

[Use the following notes for a summons addressed to a person who is not the bankrupt. Otherwise omit them.]

Note 2   If you do not comply with this summons, a warrant for your apprehension (arrest) may be issued under section 264B of the Bankruptcy Act 1966. However, a warrant will not be issued if you were not given a reasonable amount for expenses.

Note 3   You may apply to have this summons discharged by filing an interim application and supporting affidavit.

Form 10Application for summons to examine relevant person or examinable person

(rules 6.07, 6.13)

APPLICATION FOR SUMMONS TO EXAMINE RELEVANT PERSON OR EXAMINABLE PERSON

Bankruptcy Act 1966, section 81

IN THE [name of Court]

REGISTRY: [name of Registry]

GENERAL DIVISION

No.    of [year]

IN THE MATTER OF [name of debtor or bankrupt estate]

[name of applicant(s)]

Applicant(s)

[name of respondent(s)]

Respondent(s)

On the grounds set out in the supporting affidavit, the applicant requests the *Court/*Registrar to issue a summons under section 81 of the Bankruptcy Act 1966 in accordance with the accompanying draft summons(es) to the following:

A.      Relevant person(s)

          *to give evidence:

          OR

          *to give evidence and produce documents:

          [set out the name and address of each relevant person and, if appropriate, the details of the documents to be produced]

 

  The following information must appear at the foot of the first page of this application.

Filed on behalf of (name and role of party)

 

Prepared by (name of person/lawyer)

 

Law firm (if applicable)

 

Tel

 

Fax

 

Email

 

Address for service
(include State and postcode)

 

B.      Examinable persons

          *to give evidence:

          OR

          *to give evidence and produce documents:

          [set out the name and address of each examinable person and, if appropriate, the details of the documents to be produced]

Date:

[signed, applicant or applicant’s lawyer]

*Applicant/*Applicant’s lawyer

*   Omit if inapplicable

Form 11Notice to creditors of annulment application

(rule 7.03)

NOTICE TO CREDITORS OF ANNULMENT APPLICATION

IN THE [name of Court]

REGISTRY: [name of Registry]

GENERAL DIVISION

No.    of [year]

IN THE MATTER OF [name of debtor or bankrupt estate]

[name of applicant(s)]

Applicant(s)

[name of respondent(s)]

Respondent(s)

I, [name], *applicant/*applicant’s lawyer, give notice that [name of debtor or person administering estate of deceased debtor] will be applying for the annulment of the bankruptcy.

The application is to be heard at:

Time and date:   [to be inserted by Registry]

Place:   [address of court]

If a creditor wishes to take part in the hearing, the creditor must file and serve a notice of appearance at least 3 days before the hearing date stated above.

*   Omit if inapplicable

 

  The following information must appear at the foot of the first page of this notice.

Filed on behalf of (name and role of party)

 

Prepared by (name of person/lawyer)

 

Law firm (if applicable)

 

Tel

 

Fax

 

Email

 

Address for service
(include State and postcode)

 

Form 12Notice to creditors of application for review of Registrar’s decision to make sequestration order

(rule 7.06)

NOTICE TO CREDITORS OF APPLICATION FOR REVIEW OF REGISTRAR’S DECISION TO MAKE SEQUESTRATION ORDER

IN THE [name of Court]

REGISTRY: [name of Registry]

GENERAL DIVISION

No.    of [year]

IN THE MATTER OF [name of debtor or bankrupt estate]

[name of applicant(s)]

Applicant(s)

[name of respondent(s)]

Respondent(s)

I, [name], *applicant/*applicant’s lawyer, give notice that [name of debtor or person administering estate of deceased debtor] will be applying for review of the decision by Registrar [name] on [date of decision] to make a sequestration order against the estate of [name of debtor].

The application is to be heard at:

Time and date:   [to be inserted by Registry]

Place:   [address of court]

If a creditor wishes to take part in the hearing, the creditor must file and serve a notice of appearance at least 3 days before the hearing date stated above.

*   Omit if inapplicable

 

  The following information must appear at the foot of the first page of this notice.

Filed on behalf of (name and role of party)

 

Prepared by (name of person/lawyer)

 

Law firm (if applicable)

 

Tel

 

Fax

 

Email

 

Address for service
(include State and postcode)

 

Form 13Notice to creditors

(rules 9.04, 10.04)

NOTICE TO CREDITORS

IN THE [name of Court]

REGISTRY: [name of Registry]

GENERAL DIVISION

No.    of [year]

IN THE MATTER OF [name of debtor or bankrupt estate]

[name of applicant(s)]

Applicant(s)

[name of respondent(s)]

Respondent(s)

I, [name], *applicant/*applicant’s lawyer, give notice that an application for [state nature of application, including any application for sequestration order] has been made to the Court by [name of applicant], [state the capacity of the applicant, eg creditor, debtor or trustee, and relevant section of the Bankruptcy Act 1966].

The application is to be heard at:

Time and date:   [to be inserted by Registry]

Place:   [address of court]

Copies of the application and affidavits in support are available from the applicant at the address stated below.

If you wish to take part in the proceeding, a notice of appearance must be filed and served 3 days before the hearing.

*   Omit if inapplicable

 

  The following information must appear at the foot of the first page of this notice.

Filed on behalf of (name and role of party)

 

Prepared by (name of person/lawyer)

 

Law firm (if applicable)

 

Tel

 

Fax

 

Email

 

Address for service
(include State and postcode)

 

Form 14Applicant creditor’s petition for administration of deceased person’s estate

(rule 11.01)

APPLICANT CREDITOR’S PETITION FOR ADMINISTRATION OF DECEASED PERSON’S ESTATE

Bankruptcy Act 1966, section 244

IN THE [name of Court]

REGISTRY: [name of Registry]

GENERAL DIVISION

No.    of [year]

IN THE MATTER OF [name of debtor or bankrupt estate]

[name of applicant creditor(s)]

Applicant creditor(s)

[name of respondent debtor(s)]

Respondent debtor(s)

NOTICE TO RESPONDENT

TO:    [legal personal representative of the deceased respondent debtor or other person as directed by the Court under subsection 244(9) of the Bankruptcy Act 1966]

[address]

This petition has been set down for hearing by the Court at the time, date and place stated below. If you or your legal representative do not attend the Court at that time, the petition may be dealt with in your absence and an order made for the administration of the estate of the deceased respondent debtor.

 

  The following information must appear at the foot of the first page of this petition.

Filed on behalf of (name and role of party)

 

Prepared by (name of person/lawyer)

 

Law firm (if applicable)

 

Tel

 

Fax

 

Email

 

Address for service
(include State and postcode)

 

If you wish to appear at the hearing, you must file and serve a notice of appearance.

If you wish to appear at the hearing and oppose this petition, you must:

(a)     enter an appearance in accordance with Form 4, and file a notice stating grounds of opposition to the petition in accordance with Form 5 and an affidavit supporting the grounds; and

(b)     serve a copy of each document on the applicant creditor at the address for service stated below not less than 3 days before the date for the hearing of this petition stated below; and

(c)     attend at the Court on the date for the hearing stated below.

Time and date for hearing: [to be entered by Registry]

Place: [address of Court]

Date:

[signed, Registrar]

Registrar

PETITION

The applicant creditor, [name and address of creditor], applies to the Court for an order of administration in bankruptcy of the estate of the late [name of deceased respondent debtor] who died on [date of death].

1.       The estate of the deceased respondent debtor owes the applicant creditor the amount of [$ amount] for [statement of reason for the debt]. This debt is a liquidated sum payable immediately or at a certain future time.

2.       The applicant creditor does not hold security over the property of the deceased respondent debtor.

OR

The applicant creditor holds security over the property of the deceased respondent debtor to the value of [$ amount] and consisting of [statement of particulars of security], and:

(a)     is willing to surrender this security for the benefit of creditors generally if a sequestration order for administration of the estate in bankruptcy is made;

OR

(b)     the value of the property is [$ amount], which leaves an unsecured debt of [$ amount].

Note   If there is more than 1 creditor, this form may be appropriately amended.

3.       At the time of the respondent debtor’s death, the respondent debtor:

*(a)    was personally present in Australia;

*(b)    was ordinarily resident in Australia;

*(c)    had a dwelling house or place of business in Australia;

*(d)    was carrying on business in Australia either personally or by an agent or manager;

*(e)    was a member of a firm or partnership carrying on business in Australia by means of partners or agent or manager.

4.       [Also state any details of the status of any authorisation to administer the deceased person’s estate.]

Date:

[signed, petitioner or lawyer for petitioner]

*Petitioner/*Petitioner’s lawyer

*   Omit if inapplicable

Form 15Administrator’s petition

(rule 11.03)

ADMINISTRATOR’S PETITION

Bankruptcy Act 1966, section 247

IN THE [name of Court]

REGISTRY: [name of Registry]

GENERAL DIVISION

No.    of [year]

IN THE MATTER OF [name of debtor or bankrupt estate]

[name of applicant(s)]

Applicant(s)

[name of respondent(s)]

Respondent(s)

NOTICE TO RESPONDENT

TO:    [legal personal representative of the deceased respondent debtor]

[address]

This petition has been set down for hearing by the Court at the time, date and place stated below. If you or your legal representative do not attend the Court at that time, the petition may be dealt with in your absence and an order made for the administration of the estate of the deceased respondent debtor.

If you wish to appear at the hearing, you must file and serve a notice of appearance.

 

  The following information must appear at the foot of the first page of this petition.

Filed on behalf of (name and role of party)

 

Prepared by (name of person/lawyer)

 

Law firm (if applicable)

 

Tel

 

Fax

 

Email

 

Address for service
(include State and postcode)

 

If you wish to appear at the hearing and oppose this petition, you must:

(a)     enter an appearance in accordance with Form 4, and file a notice stating grounds of opposition to the petition in accordance with Form 5 and an affidavit supporting the grounds; and

(b)     serve a copy of each document on the applicant creditor at the address for service stated below not less than 3 days before the date for the hearing of this petition stated below; and

(c)     attend at the Court on the date for the hearing stated below.

Time and date for hearing: [to be entered by Registry]

Place: [address of Court]

Date:

[signed, Registrar]

Registrar

PETITION

The applicant, [name and address of administrator], applies to the Court for an order of administration in bankruptcy of the estate of the late [name of the deceased person] who died on [date of death].

1.       The applicant is the administrator of the deceased debtor’s estate.

2.       The affairs of the deceased debtor and of my administration of the estate are set out in the documents accompanying this petition. To the best of my belief, it is a true and complete statement.

Note   If there is more than 1 administrator, the form may be appropriately amended.

3.       At the time of the debtor’s death, the debtor:

*(a)    was personally present in Australia;

*(b)    was ordinarily resident in Australia;

*(c)    had a dwelling house or place of business in Australia;

*(d)    was carrying on business in Australia either personally or by an agent or manager;

*(e)    was a member of a firm or partnership carrying on business in Australia by means of partners or agent or manager.

Date:

[signed, petitioner]

Petitioner

Before:

[signature, name, address and occupation of witness]

*   Omit if inapplicable

Form 16Arrest warrant

(rule 12.01)

ARREST WARRANT

IN THE [name of Court]

REGISTRY: [name of Registry]

GENERAL DIVISION

No.    of [year]

IN THE MATTER OF [name of debtor or bankrupt estate]

[name of applicant(s)]

Applicant(s)

[name of respondent(s)]

Respondent(s)

TO:   [name of officer], a *member/*special member of the Australian Federal Police and to all other members and special members of the Australian Federal Police and to all constables of police throughout the Commonwealth and to the Governor or Keeper of Her Majesty’s Gaol at [place] and to the Governor or Keeper of any of Her Majesty’s Gaols within the Commonwealth.

BECAUSE of evidence taken on oath, the Court has reason to believe that [name of debtor or bankrupt], against whom a bankruptcy notice has been issued, has absconded with a view to avoiding payment of *his/*her debts [or otherwise as the case may be in accordance with the wording of section 78 of the Bankruptcy Act 1966].

THIS warrant therefore requires and authorises you, [name of officer], and all other constables to whom this warrant is addressed, to take [name of debtor or bankrupt] and to deliver *him/*her to the Governor or Keeper of Her Majesty’s Gaol at [place], and you the Governor or Keeper are to receive [name of debtor or bankrupt] and keep *him/*her safely in the gaol and in your custody until the Court otherwise orders.

THIS warrant also requires and authorises you, [name of officer], and all other constables to whom this warrant is addressed, to seize any property, books, documents, papers and writings in the possession of the *debtor/*bankrupt, and to deliver them into the custody of [full name and address of person named in Court’s order] to be kept by that person until the Court makes an order for their disposal.

Dated:

[signed, Registrar]

Registrar

*   Omit if inapplicable

Form 17Apprehension warrant

(rule 12.02)

APPREHENSION WARRANT

Bankruptcy Act 1966, section 264B

IN THE [name of Court]

REGISTRY: [name of Registry]

GENERAL DIVISION

No.    of [year]

IN THE MATTER OF [name of debtor or bankrupt estate]

[name of applicant(s)]

Applicant(s)

[name of respondent(s)]

Respondent(s)

TO:      [name of officer], a *member/*special member of the Australian Federal Police and to all other members and special members of the Australian Federal Police and to all constables of police throughout the Commonwealth and to the Governor or Keeper of Her Majesty’s Gaol at [place], and to the Governor or Keeper of any of Her Majesty’s Gaols within the Commonwealth.

BY summons dated [date], and directed to [full name and address of person named in summons], [person named in summons] was required to appear personally before *the Court/*a Registrar/*a Magistrate at [time] at [address at which examination or other proceeding was to have been held], AND which summons was, as has been proved on oath, served on [name of person] on [date].

‡AND a reasonable amount was tendered to [name of person] for expenses, AND, without reasonable excuse, the person failed to appear as required by the summons.

THIS warrant therefore requires and authorises you, [name of officer], and all other constables to whom this warrant is addressed, to take [name of person] and bring *him/*her up for examination to the Court [address] or a registry of the Court that is convenient.

THIS warrant also requires and authorises you, if [name of person] cannot immediately be brought before *the Court/*a Registrar/*a Magistrate, to deliver *him/*her to the Governor or Keeper of Her Majesty’s Gaol at a convenient place and you the Governor or Keeper are to receive [name of person] and keep *him/*her safely in the gaol and in your custody until *the Court/*a Registrar/*a Magistrate otherwise orders, and you are to produce *him/*her before *the Court/*a Registrar/*a Magistrate as *the Court/*a Registrar/*a Magistrate directs.

THIS warrant also informs you, [name of officer], and all other constables to whom this warrant is addressed, that subsection 264B(4) of the Bankruptcy Act 1966 empowers you to break and enter any place or building for the purpose of executing this warrant.

Dated:

[signed, Registrar]

Registrar

*   Omit if inapplicable

‡   Omit if the summons is to a relevant person under section 81 of the Bankruptcy Act 1966

Form 18Consent to act as designated person

(rule 14.05)

[Title]

I, [name], of [address], a registered trustee, consent to be appointed by the Court and to act as the person designated by the Court under *article 19/*article 21 of the Model Law to administer or realise all or part of the assets of [name of debtor or bankrupt estate] or under article 21 to distribute all or part of the assets of [name of debtor or bankrupt estate].

I am not aware of any conflict of interest or duty that would make it improper for me to act as the person designated by the Court.

The hourly rates currently charged in respect of work done as the person designated by the Court by me, and by my partners and employees who may perform work in this administration, are set out below or in the Schedule which is attached to this Consent.

I acknowledge that my appointment by the Court does not constitute an express or implied approval by the Court of these hourly rates.

Date:

[signed, registered trustee]

registered trustee

*   Omit if inapplicable

Schedule

[description of hourly rate(s)]

Form 19Notice of filing of application for recognition of foreign proceeding

(rule 14.06)

IN THE FEDERAL COURT OF AUSTRALIA                         No.  of [year]

[Name of debtor or bankrupt estate]

TO all the creditors of [name of respondent debtor]

TAKE NOTICE that:

1.       An application under the Cross‑Border Insolvency Act 2008 for recognition of a foreign proceeding in relation to [name of debtor or bankrupt estate] was commenced by the applicant, [name of applicant], on [date of filing of application] and will be heard by the Court at [address of Court] at [time] on [date]. Copies of documents filed may be obtained from the applicant’s address for service.

2.       The applicant’s address for service is [name and address of applicant’s lawyer or, if there is no lawyer, address of the applicant].

3.       Any person intending to appear at the hearing must file a notice of appearance, in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice and any affidavit on the applicant at the applicant’s address for service at least 3 days before the date fixed for the hearing.

4.       If you are a foreign creditor you must file in the registry of the Court at the address mentioned in paragraph 1 an affidavit setting out the details of any claim, secured or unsecured, that you may have against the debtor or bankrupt estate above at least 3 days before the date fixed for the hearing.

Date:

Name of applicant or applicant’s lawyer: [name]

Form 20Notice of making of order under Cross‑Border Insolvency Act 2008

(rule 14.07)

IN THE FEDERAL COURT OF AUSTRALIA                         No.  of [year]

[Name of debtor or bankrupt estate]

TO all the creditors of [name of debtor or bankrupt estate]

TAKE NOTICE that:

1.       On [date], the [name of Court] in Proceeding No.  of [year], commenced by the applicant [name of applicant], made the following orders under the Cross‑Border Insolvency Act 2008 in relation to [name of debtor or bankrupt estate]:            [insert details of order].

2.       The applicant’s address for service is [name and address of applicant’s lawyer or, if there is no lawyer, address of the applicant].

3.       The name and address of the foreign representative is [insert name and address].

*4.     The name and address of the person entrusted with distribution of the assets is [insert name and address].

Date:

Name of applicant or applicant’s lawyer: [name]

*   Omit if inapplicable

Form 21Notice of dismissal or withdrawal of application for recognition of foreign proceeding

(rule 14.07)

IN THE FEDERAL COURT OF AUSTRALIA                No.  of [year]

[Name of debtor or bankrupt estate]

TO all the creditors of [name of debtor or bankrupt estate]

TAKE NOTICE that the application under the Cross‑Border Insolvency Act 2008 for recognition of a foreign proceeding in relation to [name of debtor or bankrupt estate] commenced by the applicant, [name of applicant], on [date of filing of application] was *dismissed/*withdrawn on [date of dismissal/withdrawal]

Date:

Name of person giving notice or of person’s lawyer: [name]

*   Omit if inapplicable

Form 22Notice of filing of application to modify or terminate an order for recognition or other relief

(rule 14.09)

IN THE FEDERAL COURT OF AUSTRALIA                No.  of [year]

[Name of debtor or bankrupt estate]

TO all the creditors of [name of debtor or bankrupt estate]

TAKE NOTICE that:

*1.     An application under the Cross‑Border Insolvency Act 2008 for an order *modifying/*terminating an order for recognition of a foreign proceeding in relation to [name of debtor or bankrupt estate] was filed by the applicant, [name of applicant], on [date of filing of interim application] and will be heard by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . at [address of Court] at [time] on [date]. Copies of documents filed may be obtained from the applicant’s address for service.

*1.     An application under the Cross‑Border Insolvency Act 2008 for an order *modifying/*terminating relief granted under *article 19/*article 21 of the Model Law in relation to [name of debtor or bankrupt estate] was filed by the applicant, [name of applicant], on [date of filing of interim application] and will be heard by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . at [address of Court] at [time] on [date]. Copies of documents filed may be obtained from the applicant’s address for service.

2.       The applicant’s address for service is [name and address of applicant’s lawyer or, if there is no lawyer, address of the applicant].

3.       Any person intending to appear at the hearing must file a notice of appearance (if the person has not already done so), in accordance with the prescribed form, together with any affidavit on which the person intends to rely, and serve a copy of the notice (if applicable) and any affidavit on the applicant at the applicant’s address for service at least 3 days before the date fixed for the hearing.

Date:

Name of applicant or applicant’s lawyer: [name]

*   Omit if inapplicable

Schedule 2Powers of the Court that may be exercised by a Registrar

(rule 2.02)

  

 

Item

Provision of the
Bankruptcy Act 1966

Description
(for information only)

1

subsection 30(1) (only for an application to set aside a bankruptcy notice)

Power to set aside a bankruptcy notice

2

section 33

Adjournment, amendment of process and extension and abridgment of time

3

paragraph 40(1)(g)

Power to grant leave to serve a bankruptcy notice outside Australia

 

4

subsection 41(6A)

Extension of time for compliance with a bankruptcy notice

5

subsection 43(1)

Power to make a sequestration order

6

subsection 46(2)

Power to make a sequestration order against 2 or more debtors

7

subsection 47(2)

Power to give leave to withdraw a creditor’s petition after presentation

8

section 49

Power to permit the substitution of another creditor as petitioner

9

subsection 52(1)

Power to make a sequestration order against the estate of a debtor

10

subsection 52(2)

Power to dismiss a creditor’s petition

11

subsection 52(3)

Power to stay all proceedings under a sequestration order for a period not exceeding 21 days

12

subsection 52(5)

Power to extend a period at the expiration of which a creditor’s petition lapses

13

section 81

Powers in relation to examinations

14

subsection 206(1)

Power to adjourn a creditor’s petition if creditors have passed a resolution for a deed and to subsequently dismiss the petition

15

subsection 244(9)

Power to direct service of a creditor’s petition on a person under Part XI

16

subsection 244(10)

Power to dispense with service of a creditor’s petition under Part XI

17

subsection 244(11)

Power to make an order for the administration of an estate under Part XI

18

subsection 244(12)

Power to dismiss a creditor’s petition under Part XI

19

subsection 244(13)

Power to give leave to present petition under Part XI

20

subsection 247(1A)

Power to make an order for the administration of the estate of a deceased person on the petition of a person administering the estate

21

section 264B

Power to issue a warrant

22

subsection 309(2)

Power to order substituted service

Schedule 3Notes to these Rules

(rule 12.01)

  

Note 1 — see rule 12.01

SEARCH WARRANT

Bankruptcy Act 1966, section 130

IN THE [name of Court]

REGISTRY: [name of Registry]

No.    of [year]

IN THE MATTER OF [name of bankrupt]

[name of applicant(s)]

Applicant(s)

[name of respondent(s)]

Respondent(s)

TO: [name of officer], a *member/*special member of the Australian Federal Police and to all other members and special members of the Australian Federal Police and to all constables of police throughout the Commonwealth and to any other person specified in Schedule 1.

ON the basis of:

(a)     an application made by the trustee of the estate of [name of bankrupt] under subsection 130(1) of the Bankruptcy Act 1966 for the issue of a warrant under subsection 130(2) of the Act in relation to premises situated at [address of premises], including any garage or storage area within the boundaries of the premises; and

(b)     information given to me by affidavit that there are reasonable grounds for suspecting that there is on or in the premises the following property (relevant property):

(i)      property of the bankrupt (including but not limited to furniture, paintings, prints, collectables, porcelain, silver, gold, jewellery, etchings, keys, safes, computers, message taking machines, the contents of any safe, vehicles, plant and equipment, computer tapes, message banks and electronic storage machines);

(ii)     property that may be connected with, or related to, the bankrupt’s examinable affairs (including but not limited to furniture, painting, prints, collectables, porcelain, silver, gold, jewellery, etchings, keys, safes, computers, message taking machines, the contents of any safe, vehicles, plant and equipment, computer tapes, message banks and electronic storage machines);

(iii)    books of the bankrupt or an associated entity of the bankrupt relevant to any of the bankrupt’s examinable affairs (including but not limited to policies of insurance, storage receipts or other documents or instruments of storage, journals, correspondence and documents); and

(c)     any further information given to me, either orally or by affidavit, about the grounds on which the issue of this warrant has been sought;

I, [full name], issue this warrant authorising you, [name of officer], together with any other person to whom this warrant is addressed:

(d)     *at any time of the day or night/*between the hours of [hour] and [hour] to enter on or into the premises, using such force as is necessary for the purpose and is reasonable in the circumstances; and

(e)     to search the premises for relevant property; and

(f)      to break open, and search for relevant property, any cupboard, drawer, chest, trunk, box, package or other receptacle, whether a fixture or not, on or in the premises; and

(g)     to take possession of, or secure against interference, any relevant property found on or in the premises; and

(h)     to deliver to the trustee, or to a person authorised in writing by the trustee for the purpose, any property of which possession is taken under the warrant.

THIS warrant ceases to have effect at the end of [day that is not later than 7 days after the day of issue of the warrant].

Dated:

[signed, Judge]

Judge

*   Omit if inapplicable

Schedule 1

[name of any other person to whom the warrant is addressed]


Endnotes

Endnote 1—About the endnotes

The endnotes provide details of the history of this legislation and its provisions. The following endnotes are included in each compilation:

 

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Endnote 5—Uncommenced amendments

Endnote 6—Modifications

Endnote 7—Misdescribed amendments

Endnote 8—Miscellaneous

 

If there is no information under a particular endnote, the word “none” will appear in square brackets after the endnote heading.

 

Abbreviation key—Endnote 2

The abbreviation key in this endnote sets out abbreviations that may be used in the endnotes.

 

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

 

The legislation history in endnote 3 provides information about each law that has amended the compiled law. The information includes commencement information for amending laws and details of application, saving or transitional provisions that are not included in this compilation.

 

The amendment history in endnote 4 provides information about amendments at the provision level. It also includes information about any provisions that have expired or otherwise ceased to have effect in accordance with a provision of the compiled law.

 

Uncommenced amendments—Endnote 5

The effect of uncommenced amendments is not reflected in the text of the compiled law but the text of the amendments is included in endnote 5.

Modifications—Endnote 6

If the compiled law is affected by a modification that is in force, details of the modification are included in endnote 6.

 

Misdescribed amendments—Endnote 7

An amendment is a misdescribed amendment if the effect of the amendment cannot be incorporated into the text of the compilation. Any misdescribed amendment is included in endnote 7.

 

Miscellaneous—Endnote 8

Endnote 8 includes any additional information that may be helpful for a reader of the compilation.

 

Endnote 2—Abbreviation key

 

ad = added or inserted

pres = present

am = amended

prev = previous

c = clause(s)

(prev) = previously

Ch = Chapter(s)

Pt = Part(s)

def = definition(s)

r = regulation(s)/rule(s)

Dict = Dictionary

Reg = Regulation/Regulations

disallowed = disallowed by Parliament

reloc = relocated

Div = Division(s)

renum = renumbered

exp = expired or ceased to have effect

rep = repealed

hdg = heading(s)

rs = repealed and substituted

LI = Legislative Instrument

s = section(s)

LIA = Legislative Instruments Act 2003

Sch = Schedule(s)

mod = modified/modification

Sdiv = Subdivision(s)

No = Number(s)

SLI = Select Legislative Instrument

o = order(s)

SR = Statutory Rules

Ord = Ordinance

Sub‑Ch = Sub‑Chapter(s)

orig = original

SubPt = Subpart(s)

par = paragraph(s)/subparagraph(s)

/sub‑subparagraph(s)

 

 

Endnote 3—Legislation history

 

Number and year

FRLI registration

Commencement

Application, saving and transitional provisions

2005 No. 341

21 Dec 2005 (see F2005L04163)

6 Feb 2006

 

2006 No. 253

21 Sept 2006 (see F2006L03139)

8 Oct 2006

2008 No. 18

12 Mar 2008 (see F2008L00709)

1 Apr 2008

2009 No. 47

23 Mar 2009 (see F2009L01135)

30 Mar 2009

2009 No. 162

28 June 2009 (see F2009L02578)

1 July 2009

2011 No. 284

20 Dec 2011 (see F2011L02749)

1 Jan 2012

230, 2013

18 Sept 2013 (see F2013L01708)

19 Sept 2013

 

Endnote 4—Amendment history

 

Provision affected

How affected

Part 1

 

r. 1.03...............................

rs. 2009 No. 47

Note to r 1.03....................

rep No 230, 2013

Note 1 to r 1.03.................

ad No 230, 2013

Note 2 to r 1.03.................

ad No 230, 2013

r. 1.04...............................

am. 2009 No. 47; 2011 No. 284

Note to r. 1.05...................

am. 2011 No. 284

Part 2

 

r. 2.01...............................

am. 2009 No. 47

r. 2.02...............................

am. 2011 No. 284

r. 2.03...............................

am. 2011 No. 284

r. 2.05...............................

am. 2011 No. 284

Part 4

 

r 4.04................................

am No 230, 2013

Note to r 4.04(1)...............

ad No 230, 2013

r. 4.06...............................

am. 2008 No. 18

r. 4.07...............................

am. 2008 No. 18

r. 4.08...............................

rs. 2011 No. 284

r. 4.09...............................

rs. 2011 No. 284

Part 7

 

Division 7.1

 

r. 7.02...............................

am. 2008 No. 18

r. 7.03...............................

am. 2008 No. 18

r. 7.04...............................

am. 2008 No. 18

r. 7.05...............................

am. 2011 No. 284

Division 7.2

 

r. 7.06...............................

am. 2008 No. 18

Part 8

 

r. 8.02...............................

am. 2011 No. 284

Part 9

 

r. 9.03...............................

am. 2011 No. 284

r. 9.05...............................

am. 2011 No. 284

Part 10

 

r. 10.03.............................

am. 2011 No. 284

r. 10.05.............................

rs. 2011 No. 284

Part 11

 

r. 11.04.............................

rs. 2011 No. 284

Part 13

 

Division 13.1

 

r. 13.01.............................

am. 2011 No. 284

Division 13.2

 

r. 13.02.............................

am. 2011 No. 284

r. 13.03.............................

am. 2011 No. 284

r. 13.04.............................

am. 2011 No. 284

r. 13.05.............................

am. 2011 No. 284

Part 14

 

Part 14..............................

ad. 2009 No. 47

r. 14.01.............................

ad. 2009 No. 47

r. 14.02.............................

ad. 2009 No. 47

r. 14.03.............................

ad. 2009 No. 47

r. 14.04.............................

ad. 2009 No. 47

r. 14.05.............................

ad. 2009 No. 47

r. 14.06.............................

ad. 2009 No. 47

r. 14.07.............................

ad. 2009 No. 47

r. 14.08.............................

ad. 2009 No. 47

r. 14.09.............................

ad. 2009 No. 47

Schedule 1

 

Form 1..............................

am. 2009 No. 162

 

rs. 2011 No. 284

Heading to Form 2............

rs. 2009 No. 47

Form 2..............................

am. 2008 No. 18; 2009 No. 47; 2009 No. 162; 2011 No. 284

Heading to Form 3............

rs. 2009 No. 47

Form 3..............................

rs. 2006 No. 253

 

am. 2008 No. 18; 2009 No. 47; 2009 No. 162; 2011 No. 284

Form 4..............................

am. 2009 No. 162; 2011 No. 284

Form 5..............................

am. 2009 No. 162; 2011 No. 284

Form 6..............................

am. 2008 No. 18; 2009 No. 162; 2011 No. 284

Note 1 to Form 6, Part 2....

am. 2011 No. 284

Form 7..............................

am. 2009 No. 162; 2011 No. 284; No 230, 2013

Form 8..............................

am. 2009 No. 162; 2011 No. 284

Form 9..............................

am. 2009 No. 162; 2011 No. 284

Form 10............................

am. 2009 No. 162; 2011 No. 284

Form 11............................

am. 2009 No. 162; 2011 No. 284

Form 12............................

am. 2009 No. 162; 2011 No. 284

Form 13............................

am. 2009 No. 162; 2011 No. 284

Form 14............................

am. 2009 No. 162; 2011 No. 284

Form 15............................

am. 2009 No. 162; 2011 No. 284

Form 16............................

am. 2009 No. 162

Form 17............................

rs. 2006 No. 253

 

am. 2009 No. 162

Form 18............................

ad. 2009 No. 47

Form 19............................

ad. 2009 No. 47

 

am. 2011 No. 284

Form 20............................

ad. 2009 No. 47

 

am. 2011 No. 284

Form 21............................

ad. 2009 No. 47

 

am. 2011 No. 284

Form 22............................

ad. 2009 No. 47

 

am. 2011 No. 284

Sch 3

 

Sch 3.................................

am No 230, 2013

 

Endnote 5—Uncommenced amendments [none]

Endnote 6—Modifications [none]

Endnote 7—Misdescribed amendments [none]

Endnote 8—Miscellaneous [none]